Rule of Law

The Normalization Of Nullification


Talking Points Memo
The Normalization Of Nullification
By Jillian Rayfield
April 1, 2011


For most of the last century, talk of secession, nullification and the rest of the extreme states-rights lexicon were relegated to the fringiest parts of the political fringe. But since Barack Obama entered the White House in January 2009, mainstream Republican rhetoric and proposed legislation at the state level have both warmed to the hoary idea that state governments can take their relationship with the federal government on what amounts to an a la carte basis or perhaps abandon it altogether.

Take the concept of Nullification — the notion that individual states can unilateral refuse to follow or enforce federal law they don’t agree with. For the most part, it’s been laughed off since the Civil War. It was brought up again by segregationists during the Civil Rights Era but more out of desperation and political theater than as a serious approach to the constitution.

But the rise of the Tea Party and its amorphous anti-federal government platform has brought these ideas closer to the mainstream than they’ve been in decades. So, while nullification advocates, Tenthers, secessionists, “constitutional tender” proponents, and the rest don’t necessarily share the same theoretical rationales, together they’ve brought hostility to the federal government back into the realm of respectable political discourse.

The change first came into full view during the Health Care Reform debate when Republican lawmakers happily ginned up and supported the idea that states could opt out of the law via Tenth Amendment-based legislation.

Current presidential candidate and former Gov. Tim Pawlenty (R-MN), for example, agreed that “asserting the Tenth Amendment may be a viable option” when it comes to keeping Minnesota from being forced to follow the health care law. And Sen. Jim DeMint (R-SC) and Rep. Michele Bachmann (R-MN) at the time advocated for the states to find ways of fighting the legislation were it to be passed, including invoking the Tenth Amendment.

Many states have since attempted to do just that. The Iowa House passed a law in February that would allow states to exempt their residents from the requirements of the health care reform law. The Idaho legislature recently killed a similar bill. The New Hampshire legislature voted down a proposal last year that would nullify health care reform, but took it a step further by allowing federal officials to be prosecuted if they tried to enforce it.

Republican lawmakers have also used this kind of rhetoric as a crutch for other issues. Then-House Minority Leader John Boehner (R-OH) said in April last year, in response to Arizona’s controversial immigration law, that “the people of Arizona have the right under the Tenth Amendment to write their own laws — and they have.”

Ten conservative House members, including Reps. Marsha Blackburn (R-TN) and Randy Neugebauer (R-TX), even set up a “Tenth Amendment task force” last April that aimed to “disperse power from Washington and restore the Constitutional balance of power through liberty-enhancing federalism.”

Minnesota State Rep. Tom Emmer, who ran for governor of Minnesota in the last midterm elections, was a longtime dabbler in Tentherism. “We all know that states have the rights to assert their Tenth Amendment powers and affirm those rights in the state constitution,” he once said.

Then there are the secession-mongers. Former Rep. Zach Wamp (R-TN), while running for governor of Tennessee, said that if in 2010 and 2012 Americans didn’t vote for a Congress committed to repealing health care reform, states might be “forced to consider separation from this government.” He later backtracked.

And Texas Gov. Rick Perry caught a lot of flak for suggesting that Texas could secede from the union “if Washington continues to thumb their nose at the American people.”

What seems like loose talk by high-profile Republicans has been echoed in a steady streams of proposed bills in state legislatures around the country. An expansive bill in Arizona would have created a mechanism for states to nullify any federal law, but it failed after passing out of the state Senate. Republicans in Montana have introduced about a dozen different kinds of nullification bills in the present session, including one that would render the Endangered Species Act invalid. Though a few of these proposals have died, some are still circulating in the state legislature.

There’s also Sheriffs First legislation, which was also proposed in Montana, and would give local sheriffs supreme authority in their counties and require the Feds to get their permission before making arrests.

Then there’s a raft of new proposed currency laws that would let states return to the gold standard or simply create their own state-based currencies. At least 10 states have legislation circulating that would legalize gold and silver as currency, and the Utah House even passed such a bill in March. In South Carolina, one legislator even floated creating a new state currency altogether.

The concept of states’ rights mostly clings to one interpretation of the Tenth Amendment, which says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Tenthers would say this means a state doesn’t have to follow federal laws the state believes exceeds the federal government’s constitutional authority.

But this pretty clearly goes against the Supremacy Clause of the Constitution, in Article 6:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Elizabeth Wydra, Chief Counsel for the progressive think tank the Constitutional Accountability Center, says that the Tenther ideology more closely resembles the breakdown of powers planned out by the Articles of Confederation, in which “Congress didn’t really have any power to enforce [the] law.”

But, she told TPM, “it’s clear that once states become part of the union, they can’t just pick and choose which laws they want to obey from the federal government. Assuming, of course, that those laws are drafted according to the Constitutional powers of the federal government.”

“A lot of these folks who are behind these nullification efforts don’t understand that,” Wydra added.

She also attributed the mainstreaming of these efforts to the rise of the Tea Party “and Tea Party rhetoric that erroneously characterizes the Constitution as giving very limited power to the federal government, when in fact that’s not true.”

But Michael Boldin, founder of the Tenth Amendment Center, disagrees. His organization, a California-based think tank that touts “liberty through decentralization,” has been a behind-the-scenes force when it comes to the Tenther movement. “Going to the federal government to fix problems that we see as being caused by the federal government is not just absurd, but it’s a failure,” he told TPM in an interview.

More of a libertarian than a Tea Party conservative himself, Boldin calls President George W. Bush a “nasty dude,” and seems more concerned with pot legalization than anything else. But his site still offers model legislation for causes like nullifying health care reform. In fact, Boldin estimates that 11 states have used his site’s own model legislation for drafting their bills to nullify health care reform. One other state used his model for hemp legislation, and six for legislation about intrastate commerce.

Boldin doesn’t see the recent increase in these kinds of bills as a surge at all. He said that states have frequently brought up bills to legalize marijuana, and he would more characterize the current momentum as a “shift in priorities” for the broad Tenther movement.

To be sure, there hasn’t been much clear victory. Boldin’s site tracks all of the legislation, and few of the bills make it out of one or both houses in the state legislature. But Boldin is happy with the victories he has had, and says that in the end, “I don’t think this centralized power idea is really working.”

It’s an assessment that no doubt still lives well outside the political mainstream, but by not nearly as much as it once did. And it’s an ideology that’s clearly gaining an expanding audience in halls of power across the country.