Nullification and Obamacare: rejection of the rule of law

By Kristopher A. Nelson
in November 2012

1200 words / 6 min.
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The idea of nullification – essentially, states telling the federal government that state law outranks federal law – is both seductive and persistent. As philosophically desirable as this may be, 200 years of settled law says this is a dead constitutional theory.

Please note that this post is from 2012. Evaluate with care and in light of later events.

The idea of nullification — essentially, states telling the federal government that state law outranks federal law — is both seductive and persistent. It’s based on a 200-year-old understanding of the Constitution: that the states created, and maintain, the federal government, and that states therefore determine what is constitutional and what is not. As philosophically desirable as this may be, 200 years of settled law says this is a dead constitutional theory.

Nonetheless, proponents insist that individual states have the power to nullify federal laws. Much of this new-found fascination with nullification revolves around opposition to the Affordable Care Act (“Obamacare”).

Nullification and the Constitution

The constitutional basis for rejected nullification comes from two key clauses and sections. First, the Supremacy Clause (Article VI, Clause 2) established federal law as supreme over state law:

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.

Second, Article III, Section 2 says, in part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…

In responding to nullification attempts by various states, the Supreme Court has consistently rejected the theory. Thus, the Supreme Court in 1809 argued that allowing nullification would be essentially make the Constitution itself worthless:

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. — United States v. Peters, 9 US 115 (1809)

Although it never went to the Supreme Court, the Nullification Crisis of the 1830s forced President Andrew Jackson — formerly supportive of such state actions — to respond to South Carolina’s rejection of federal tariffs:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed. — President Jackson’s Proclamation Regarding Nullification, December 10, 1832.

Virginia twice attempted to reject federal supremacy, and twice lost, first in Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) and second in Cohens v. Virginia, 19 U.S. 264 (1821). In 1924, Ohio tried to tax a federal bank (in violation of federal law and a Supreme Court decision), and lost in Osborn v. Bank of the United States, 22 U.S. 738 (1824).

Georgia infamously nullified a federal treaty with the Cherokee in the 1820s, and lost in Worcester v. Georgia, 31 U.S. 515 (1832). Before any enforcement action could be taken, President Andrew Jackson (who supported Georgia) negotiated an end to the crisis, leading to forced Cherokee relocation and the Trail of Tears.

Some Northern states attempted nullification in response to federal Fugitive Slave Laws. The Supreme Court rejected Pennsylvania’s attempt in Prigg v. Pennsylvania, 41 U.S. 539 (1842). Wisconsin tried again to protect fugitive slaves within its borders, and was rebuffed in Ableman v. Booth, 62 U.S. 506 (1859).

The secession of Southern states — the ultimate assertion of state over federal power — put an end to the nullification discussion until the 1950s.

In the wake of Brown v. Board of Education, 347 U.S. 483 (1954), many Southern states attempted to reject or nullify federal intervention in their states and to preserve segregation. In response to Alabama’s nullification attempts, the Supreme Court wrote in Cooper v. Aaron, 358 U.S. 1 (1958):

In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.”

The law in this are is settled. No petition or initiative, act of Congress, executive order, act of a state legislator, or governor’s action can change this, however strong, logical, or powerful the argument for it may be.

Revolution and the Rule of Law

There are nonetheless several paths to making nullification legal. Amending the federal constitution is one challenging path: it requires super-majorities at all stages, and cannot be done by any state alone. Another potential method would be to convince the current Supreme Court that previous precedent was wrong. If that failed, one could try to slowly replace the current Supreme Court with new justicies that believe in nullification, and are willing to reject 200 years of precedent. These are the only approaches allowable under the Constitution. (Remember, the Declaration of Independence is a revolutionary document, not a legal one, and it carries nothing but persuasive weight in American law. Similarly, the Federalist Papers are persuasive arguments, and carry no other legal weight.)

You cannot accept the current Constitution without also accepting the consequences of what it establishes: that the Supreme Court is the final arbiter of what the Constitution means. And the Supreme Court — acting under the Constitution and its amendments — has rejected nullification as unconstitutional. (Yes, their decisions can be wrong and even unjust, but they are always, by definition, constitutional.) No quote by Thomas Jefferson, James Madison, or anyone else can change this, even if it can give you philosophical grounds to advocate for revolutionary change. This is why Thomas Jefferson had to reach for “natural law” when he advocated for rejecting England’s rule over the American colonies. Again, such moves can be justified as revolutionary, but they fall outside the Constitution. 

Any other path to permitting nullification by states requires rejecting our establishing document (including the Tenth Amendment) through revolution. Taking this path would require rejecting a core value of the American legal tradition: respect for the rule of law. It’s an approach that led directly to the American Civil War, where the South rejected the Constitution and established an entirely new governmental system. Is this the path nullification proponents seek? To reject the Constitution they purport to hold sacred? To overthrow our democratic government and replace it with another? If so, they should acknowledge that; if not, they should recognize the limited constitutional paths to change.

Relevant cases