State Nullification of US Federal Law
Can States Set Aside Federal Laws?
In the language of the United States Constitution, viz. The 10th Amendment, the States reserve the right to nullify federal statutes. In the world of US nationalism, that right is itself null.
At least half a dozen States are now mulling it over regardless. Their motivation is adamant opposition to the bankrupting and publicly odious provisions of the federal Patient Protection and Affordable Care Act of 2010, also called PPACA, or more euphemistically the ACA, but popularly Obamacare. Idaho is in the fore, with a bill to nullify Obamacare under consideration by the legislature.
In an often mentioned 1832 nullification case, the issue was not health care but tariffs. In 1828, a bill was rammed through congress levying heavy duties on imported manufactured goods in order to protect the rising industries of the northern States. The bill was enacted against strong opposition much as Obamacare was last year, through vote buying, coercion and shady parliamentary maneuvers. As a result, it like this new one sacrificed any legitimacy it might have possessed had it been adopted by due process. That 1828 act simply was not accepted as law by those who were trampled as it was rammed through. In the South especially its effects were devastating, driving up the prices of both northern and foreign goods, artificially creating a recession due to the resulting general inflation and the corresponding decline in exports of agricultural commodities. John Quincy Adams machinated the tariff’s replacement with a new bill passed in 1832, but it was an attempt to appease all sides, retaining the first one's protectionist system but failing to solve its consequent problems. It appeased no one.
South Carolina, facing economic disaster unfairly created by the United States government, declared the tariff to be null within its borders, opening the port of Charleston to duty-free imports. Sales of commodities to foreign buyers, especially the British, immediately began to recover, and the wave of inflation in factory goods began to recede.
Andrew Jackson was president at the time. His political base was populist, a coalition of small farmers west of the Appalachians and urban factory workers in the north, and he was cognizant of the federal government's dependency on tariffs as a leading source of revenue. His presidential campaigns moreover were financed largely by northern factory owners, and he was sensitive to their interests. He took their side in the conflict. The US Supreme Court, on the other hand, was supportive of the Constitution, including the 10th Amendment and the doctrine of state nullification. Jackson nonetheless declared unilaterally that South Carolina's act would not stand on his watch regardless of its constitutionality, and he threatened to send in the US Army to enforce his will. When some of his cabinet officers objected on legal grounds, Jackson famously and tersely shot back, "How many troops does the Chief Justice have?" He was constitutionally in the wrong but politically correct and, more to the point, he as president held control of the raw, coercive, violent power to do it. The nullification dispute was effectively over. A compromise was reached later in 1832, one that still aided the industrialists and harmed the agrarians, merely to a lesser extent. Rebellion otherwise would have broken out.
During World War II, Joseph Stalin faced a similar issue involving the Catholic Church. There are several versions of the story, but the most plausible one is that at one of their several conferences Churchill argued it was crucial the USSR be seen in the western world as a democracy, and he began to speak of the Church's adamant opposition to Soviet subjugation of Eastern Europe, in particular Poland, as a contrary example. Stalin interrupted his train of reasoning with a dismissive rhetorical question, in his brutal sense of humor well aware he was playing on Jackson's original: "The Pope? How many battalions does he have?"
It is with the US as it was with the USSR. Incontestable brute force is the foundation of federal authority, whether threat of that force is applied under color of law or, as it has been and more often is threatened, outside it. "Not on my watch" justifies any act to preserve the essential status quo, the heart of which is that the federal government ultimately controls everything. That is the concept Barack Obama was stating when he said, "Government is god." Legitimacy, once past the generated smoke of constitutional argument, has nothing to do with it. The nation-state of the United States of America will do whatever it takes to maintain its rule over the nation of America, and its raw powers of coercion and violence are now exponentially greater than those wielded by Andrew Jackson, or even by Joseph Stalin. State nullification is constitutionally right, but it is going nowhere. The answer to the question posed at the beginning of this article is that the States do have the right to set aside federal laws, but they do not have the ability to exercise it.
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