Nullification movement grows as states challenge federal power

By Adam Ulbricht | Watchdog.org

The battle for power between states and the federal government has been raging since the ink was still wet on the freshly signed U.S. Constitution. The struggle continues as state governments look to take back power they claim is rightfully theirs through a process called nullification.

Although the application of the concept has started to take off more recently, the idea itself dates back to the late 1790s, when Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, opposing the Alien and Sedition Acts.

Today, a number of nullification bills have popped up in states across the country that addressing a wide range of issues.

Multiple states, including Washington, Arizona, New Hampshire and Tennessee, have introduced legislation that bar state workers from cooperating with the National Security Administration’s domestic spy program. Some bills, such as HB1533 in New Hampshire, even make it a Class-A misdemeanor if state employees are caught violating the proposed law.

In other states, such as Montana and Missouri, nullification bills have either been passed or introduced that refuse to recognize gun-control requirements made by the federal government. In 2009, Montana passed the Firearms Freedom Act, which prohibited federal regulations of guns manufactured within the state’s borders. A federal appeals court struck down the act in August, citing the commerce clause.

A host of states are challenging President Obama’s signature legislative achievement, the Affordable Care Act. Indiana just introduced HB1406, which resists the enforcement of ACA guidelines. The Hoosier State joins South Carolina, Oklahoma and Georgia in doing so.

So, why all the recent outrage from the states? That question is debatable.

Geoffrey Skelley, a political analyst with the Center for Politics at the University of Virginia, says major legislation, such as the ACA, often creates tension and “strident disagreement.” Skelley said he believes it’s actually “healthy” because it “forces us to have conversations about these issues.”

Still, others, such as Michael Maharrey of the Tenth Amendment Center, say it’s the federal government overstepping its bounds. “We have an unlimited federal government today,” said Maharrey. “We seem to let the federal government decide what its own powers are.”

The Tenth Amendment Center is a nonprofit organization that is helping lead the charge in support of nullification.

Maharrey points out that not all nullification bills take the same form. Some bills rely on the Anti-Commandeering Doctrine, meaning states simply don’t enforce federal regulations. Others come from the idea of interposition, which tend to focus on making it illegal to comply with federal laws.

But the biggest question surrounding nullification is whether it’s constitutional? Multiple rulings by the Supreme Court have upheld the federal government’s power over the states.

For constitutional scholars such as Ilya Somin of the George Mason University School of Law, it all depends on how you define nullification.

“Not enforcing the law is perfectly constitutional, “said Somin. “Creating laws that make it illegal to follow federal rules is not.”

Somin says if the federal government wants to enforce its rules, they will have to find the resources to do it themselves or better incentivize the states with more funding.

The biggest victory to date for nullifiers comes out the federal government’s ban on marijuana. The Supreme Court ruled in the 2005 case of Gonzales v. Raich that the federal government can criminalize cannabis through the commerce clause.

Since that ruling, more than 20 states have looked past the federal definition and legalized marijuana in some form, primarily for medical purposes. In November 2012, residents in Washington and Colorado voted to legalize marijuana for recreational use.

Victories like these leave Maharrey hopeful for the movement’s future. “People will tell you this will never work, but it will win over time,” said Maharrey. “When the popular will is there, the federal government can’t do anything about it.”

You can contact Adam by emailing him at aulbricht@watchdog.org

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