In the broadest sense, nullification is a concept that states have the right to nullify- or invalidate- a federal measure that they deem unconstitutional. There is a strong pedigree for this line of thinking that dates back to our founding. Most experts hold out the Virginia and Kentucky Resolutions which were a reaction to the Alien and Sedition Acts. Jefferson’s draft of the Kentucky Resolution introduced the term “nullification.” In follow-up resolutions the following year, he declared it “the rightful remedy” when the federal government exceeded its constitutional authority. James Madison, in the Virginia Resolution, said states were “duty-bound to resist” in such situations.
To understand nullification in the contexts of both sanctuary cities and gun laws, follow me for a few seconds of theory. Nullification is based on the assertion that sovereign states founded the Union and as the creators, they are the ultimate arbiters on the powers of the federal government. Staunch Federalist Alexander Hamilton said such in Federalist #33. In our system, no government is sovereign- the people of the various states are sovereign.
However, many people will often look to Article VI of the Constitution- the Supremacy Clause. The pertinent clause states:
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Emphasis mine]
Plainly stated, no one can argue that when the federal government acts within the scope of its powers, those actions are the supreme law of the land. The flip-side corollary- one overlooked by the Left- is that when the federal government acts outside the scope of its powers, those acts are null and void. Instead, they become an act of usurpation. Put another way, laws enacted by Congress are the supreme law of the land if they are made in pursuance of their constitutional powers, not in defiance of them.
It was Thomas Jefferson who warned us early on that if the federal government is allowed a monopoly on determining the extent of their own powers, they will constantly find new ones. Madison said that judges and courts were not infallible and when all three branches of government exceeded their constitutional limits, there had to be a remedy. Alleged law school experts read whole words out of the Supremacy Clause and it is safe to assume that both Jefferson and Madison were quite familiar with the Clause. If it is not in pursuance of a power delegated to the federal government under the Constitution, the Supremacy Clause does not even apply.
Law school experts- usually of the liberal stripe- will tell us that nullification is a silly concept from the start since it is nowhere to be found in the Constitution. This seems a rather hypocritical statement from people who can in other instances find things nowhere to be found in the document. The Constitution does not specifically vest the power of judicial review in the Supreme Court either. Should we then discard the notion of judicial review, using their own logic?
Lucas Powe, a constitutional law professor at the University of Texas, is indicative of this mindset:
Nullification is something advocated by two groups of people — nut cases, which is much more typical — and people who are losing at the federal level and resent the fact that they are losing. If you believe in nullification, you don’t believe in the constitution.
While condemning nullification as craziness in the minds of those on the Right, then the Left are also kooks since they have employed it more often. Leaving aside one’s beliefs on the subject, what explains states openly defying (i.e., nullifying) federal drug laws by legalizing marijuana? Likewise, one could ask the same question of those states or jurisdictions who have decided to ignore federal immigration laws. Unlike drug laws which are a relatively new phenomena in federal law, immigration laws are exclusively the constitutional purview of the Federal government.
When nullification enjoys either indifference, or sizable support of a local population, and encourages government inaction, it tends to work. But when the federal government is faced with enforcing federal law over the objections of local governments and when at least one branch of government is on the side of the nullifiers, things get murky.
It is exactly this phenomena that the Left understands. They realize the feds can only do so much without local help. They- local law enforcement- have greater numbers and federal law enforcement efforts tend to be PR disasters (see: Waco, Ruby Ridge, the Bundy Ranch). The reverse does not work that well. If nullification requires an active role of local law enforcement, follow-through is a problem. For example, if a state wanted to nullify Roe v. Wade, that would require local cops closing down clinics and physicians. That is much different from refusing to take action. The federal government is not constrained by the law, but by political opinion. It is political opinion that the Right often tends to ignore. The Right seems to believe that legal realities trump political ones when the opposite is often true. Sanctuary cities and jurisdictions actually place local pressure on the federal government to not take any action.
The supporters of sanctuary cities will tell us that they are not nullifying any federal law, but are instead relying upon the “anti-commandeering” principle of jurisprudence. In a nutshell, it says that the federal government cannot force a state to participate in a federally enacted regulatory scheme. It is because of this that sanctuary legislation goes out of their way to state they allow ICE to seek out undocumented immigrants, only that they will not help in doing so. To encourage local help, the federal government offers carrots in the form of law enforcement grants. However, the federal government can remove those carrots, but usually, because of this principle, not use the stick.
By taking this tack, they steer clear of the alleged unconstitutionality of a federal law which they wish not to join in the prosecution of at the state/local level. However, underlying the entire the scheme is the belief that the federal law is unconstitutional, not fair, arbitrary, or whatever, and that they are protecting the civil liberties of “residents” and keeping them from abuse of the judicial system. To use their terms, they are embracing a culture of welcome and tolerance.
Unlike sanctuary cities where the people (or the states) delegated immigration law and enforcement to the Federal government, neither the people nor the states delegated to the federal government the regulation of or control over firearms. In fact, quite the opposite occurred as codified in the Second Amendment. As such, state or even local efforts to, in effect, “nullify” federal firearms laws stand on firmer constitutional ground. Why? The answer is simple: Unlike health care, abortion, gay marriage, or any other “right” the Left reads into the Constitution, the very same document specifies “the right to bear arms” in the Constitution.
A few years ago, Kansas attempted a federal gun law “nullification bill” that brought this response from then Attorney General, Eric Holder: “Under the Supremacy Clause of the United States Constitution, Kansas may not prevent federal employees and officials from carrying out their official responsibilities. And a state certainly may not criminalize the exercise of federal responsibilities.” Besides constitutionally ignorant, he ignores the fact that onerous federal gun control laws are unconstitutional. While the Supreme Court may be reticent and reluctant in taking a major gun control case, states and localities are forging ahead on both sides of the political divide.
In states like New Mexico, Nevada, Washington, Colorado, Oregon, Washington and even Illinois, local law enforcement announced they had no intention of enforcing extreme gun control efforts passed in their respective state capitals. A political science professor at the State University of New York and expert in the history of gun laws, Robert Spitzer, says this:
This current movement takes it one step further by crossing the line of legality and picking and choosing which laws they want to enforce. Quite frankly it’s not their call, and it’s an abuse of their authority, and I would say political position.
No doubt professor Spitzer does not think it is an abuse of authority or picking which laws to enforce when it comes to the legalization of marijuana, the imposition of Obamacare on states, gay marriage, abortion and sanctuary cities.
There is a huge qualitative difference between ignoring a law which falls under the power of the federal government and ignoring a law that violates a Constitutional right. And when the Left invokes the “supreme law of the land,” perhaps they should start at first principles where that specifically protected in the Constitution- namely, the Second Amendment- is the supreme law of the land.