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nullify-obamacare_big

When must a state acquiesce to the demands of the federal government? The question is not as straightforward as many believe. The U.S. Constitution is fairly explicit in “enumerating” the federal government’s powers, which at least tells us that the answer must be “sometimes,” not simply always or never. Powers not specifically granted to the federal  government are generally reserved by the states. This is the principle of federalism, but in practice it leaves plenty of room for disagreement. The federal government has grown enormously in size and in the scope of its activities. It seems inevitable that tensions will arise over specific questions about the limits of federal authority. And over time, in response to challenges, the courts have interpreted some of the enumerated powers more expansively. There is an ongoing debate over what avenues, in addition to the courts, states may follow in challenging federal power. Some have framed it as a debate over state “nullification” of specific federal laws versus a constitutional convention to establish clearer limits on the reach of federal power.

Recently, nullification has been all the rage, as this article in The Hill makes clear. So-called “mandates” often require states to enforce federal laws, which is likely to provoke some objections. And major pieces of federal legislation have become so complex that details must be sorted out by the administrative agencies in charge of implementation. This involves lots of rule-making and delegation of authority that has frequently imposed burdens on state governments. States are increasingly refusing to cooperate. From The Hill:

The legislative onslaught, which includes bills targeting federal restrictions on firearms, experimental treatments and hemp, reflects growing discord between the states and Washington, state officials say. …

Friction between the states and the federal government dates back to the nation’s earliest days. But there has been an explosion of bills in the last year, according to the Los Angeles-based Tenth Amendment Center, which advocates for the state use of nullification to tamp down on overzealous regulation.

Later in the same article, the author discusses an effort to organize a constitutional convention:

… conservatives are pushing for states to invoke Article 5 of the Constitution and hold a ‘convention of states’ to restrict the power and jurisdiction of the federal government. The group Citizens for Self-Government is leading the charge, and three states — Alaska, Georgia and Florida — have already passed resolutions calling for the convention. Another 26 states are considering legislation this year, according to the group’s president, Mark Meckler. It would take 34 states to call a convention. At the convention, Meckler said the states would work to pass amendments that impose fiscal restraints, regulatory restrictions and term limits on federal officials, including members of the Supreme Court. ‘We’ll have [Article 5] applications pending in 41 states within the next few weeks,’ he said. ‘The goal is to hold a convention in 2016.’

Libertarians are split on the issues of nullification and a constitutional convention. The latter  is addressed by A. Barton Hinkle in Reason, who questions the necessity of a convention and sees certain risks in the effort, such as new provisions that could “backfire”, the possibility of a “runaway convention”, and efforts to riddle the Constitution with “primary laws,” rather than merely improving it as a framework for governing how we are governed.

As for nullification, Robert Levy, board chairman of The CATO Institute, distinguishes between situations in which a state is asked to enforce a federal law and those involving federal enforcement of a law deemed to be unconstitutional by a state. He asserts that states cannot resolve the latter type of dispute via nullification:

Fans of nullification count on the states to check federal tyranny. But sometimes it cuts the other way; states are also tyrannical. Indeed, if state and local governments could invalidate federal law, Virginia would have continued its ban on inter-racial marriages; Texas might still be jailing gay people for consensual sex; and constructive gun bans would remain in effect in Chicago and elsewhere.

… If a state deems a federal law to be unconstitutional, what’s the proper remedy? The answer is straightforward. Because the Supreme Court is the ultimate authority, the remedy is a lawsuit challenging the constitutionality of the suspect federal regulation or statute.

Not surprisingly, the Tenth Amendment Center strongly disagrees with the limits on nullification described by Levy:

Levy’s entire argument rests on the idea that the federal courts possess the sole and final authority to determine the constitutionality of an act. … Levy never addresses the fundamental question facing those who oppose nullification: how does one reconcile the undeniable fact that the state ratifying conventions adopted the Constitution with the understanding that it was creating a general government with specific, limited powers and the idea that a branch of that very same federal government has the final say on the extent of its own powers? Quite simply, you can’t.

These recent efforts to reign in the federal government are exciting. I am watching the progress of the Article 5 convention effort with great interest. I am not sure I buy into Levy’s arguments against nullification because checks on power should cut both ways: the Constitution allows states to retain powers not specifically granted to the federal government, so the states should guard those powers jealously. It matters not whether the question involves state enforcement of a federal law or a federal law that violates states rights. Likewise, powers specifically granted to the federal government should serve as a check on “state-level tyranny”. Again, that leaves plenty of room for disagreement before the courts.