I’ve been writing a fair amount about the right and nullification efforts of late, but after having my hat handed to me by Jonathan Adler yesterday, it occurred to me it might be worth getting back to basics about what is and isn’t constitutionally permissible.
I got in touch with David Gans, the director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. Gans is also the former program director of Cardozo Law School’s Floersheimer Center for Constitutional Democracy and a former NYU law professor.
So, what’s nullification and why is the right re-litigating a discredited argument?
“Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun, based on the notion that the states created the Constitution and retained the power to determine whether the federal government complied with limitations on its power. This theory has been universally rejected throughout the course of American history by the courts as inconsistent with the Constitution. As the Constitution’s preamble makes clear, ‘We the People,’ not the states, ‘ordain[ed] and establish[ed] th[e] Constitution.’
“The Constitution’s Supremacy Clause provides that federal law is the ‘supreme Law of the Land,’ and Article III of the Constitution gives to the federal judiciary the power to decide “all cases arising under the Constitution.’ States, thus, cannot simply declare that the acts of the federal government are null and void. But, despite the rock-solid arguments against nullification, state governments continue to press the idea that they have the power to treat certain federal laws as null and void. These arguments, while not new, have no basis in the Constitution.”
So far, so good. But what about measures like the one pending in Kansas?
“Under the Commerce Clause, Congress has the power to enact nationwide gun laws. Kansas cannot limit the scope of these laws on the theory that the guns are only manufactured within state lines. Such arguments have been repeatedly rejected by the courts. Kansas also cannot prevent the enforcement of federal laws within the state. As the Supremacy Clause provides, federal law is the supreme law of the land and trumps any conflicting state law.”
All right, but then there’s that Texas story, which relates to state and federal law enforcement. That struck me as raising nullification concerns; it struck Adler as an example of me being an idiot. What does Gans have to say? It’s complicated.
“This issue is slightly more complicated because of the Supreme Court’s 5-4 ruling in Printz v. United States, 521 U.S. 898 (1997), that the federal government cannot require state law enforcement officers to enforce federal law. Even though Printz leaves state and local governments some discretion, there is a strong argument that the Supremacy Clause forbids a state from singling out a class of federal laws it disagrees with and refusing to enforce them.”
But what the general argument about states not having the luxury of picking and choosing which federal laws they’ll honor and which they won’t?
“As the Supremacy Clause provides, the Constitution and federal laws made pursuant to it are the supreme law of the land. Throughout, state efforts to nullify federal laws they disagree with have been rejected. This does not mean that states always have to enforce federal law, but they cannot ignore the Constitution’s command that federal law is supreme and trumps conflicting state law.”
Thanks to Gans for the info and for Adler for setting me straight.