California’s century-old experiment with the ballot initiative has indeed been a spectacle of turbulence and contention.
In his speech announcing a Justice Department lawsuit against the State of California, Attorney General Jeff Sessions suggested that the Golden State is treading the path of the confederacy. Condemning recent California laws enacted to impede federal immigration enforcement, Sessions said: “There is no nullification. There is no secession.” The state’s political leaders did not appreciate the comparison.
Nevertheless, the attorney general has a point. California’s behavior today is reminiscent of the course charted by South Carolina in the nullification crisis of 1832, when John Calhoun previewed for the country the impulses and arguments that would later lead to secession and civil war.
Responding to the so-called “Tariff of Abominations,” which many southerners held to be an unconstitutional use of the federal government’s taxing power, South Carolina elected a special convention. That convention issued an ordinance purporting to declare the federal tariff “null, void, and no law.” The ordinance further declared it unlawful for anyone within the state, including federal officials, to enforce the payment of the taxes at issue.
To be sure, California has not (yet) gone as far as South Carolina. California’s legislation does not formally claim a power to nullify federal immigration law. And even the boldest of its recently enacted laws does not make it illegal for federal officials to enforce federal immigration law. It rather stops short at making it unlawful for some businesses to cooperate voluntarily—that is, in the absence of a court order—with federal immigration authorities.
By holding back to this extent, California hopes to stay, even if just barely, on the right side of the Supremacy Clause—that provision of the Constitution that declares the laws of the United States “the supreme law of the land . . . any thing in the Constitution or laws of any state to the contrary notwithstanding.”
Yet there is one sense in which California’s position is even more extreme than that taken by the incendiary South Carolinians of 1832. After all, the proto-confederates at least claimed, however unreasonably, that the federal law they opposed was unconstitutional. California’s politicians, in contrast, do not assert the unconstitutionality of America’s immigration laws. They just don’t want them to be enforced.
Such differences aside, today’s Californians are clearly acting in the same spirit as their nullifying predecessors. To borrow the words of the South Carolina Nullification Ordinance, California’s leaders seek, as much as they dare, “to prevent the enforcement and arrest the operation” of federal law. And their actions raise dangers similar to those that were highlighted by President Andrew Jackson when he condemned the 1832 Nullification Ordinance.
In his “Proclamation Regarding Nullification,” Jackson warned that the ultimate tendency of South Carolina’s arguments and actions was to destroy the Union itself. After all, if one state can declare a federal law unconstitutional and forbid its enforcement, then any state can declare any federal law unconstitutional and forbid its enforcement. At that point the country would have a government in name only, since the states would have to obey only those laws they saw fit to obey.
The principle behind California’s actions today is almost as deadly. If California can make it unlawful for certain citizens to cooperate freely with federal immigration authorities, then any state can make it unlawful for any citizens to cooperate freely with any federal officials. As Attorney General Sessions noted, if California can take such steps to impede federal immigration enforcement, then other states can do the same to impede the enforcement actions of the EPA, the FBI, or any other federal agency.
If such a system would not actually bring the federal government to a halt, it would at least unacceptably slow it down. Energetic execution of the laws was one of the key principles the Founders sought to attain by writing and ratifying the Constitution. Under the Articles of Confederation they had experienced the humiliations and dangers that arose from a government powerless to enforce its decisions. Thus they created a new government, limited in its scope, but fully empowered to carry its laws into effect without having to ask the permission of any state government.
Just as the federal government cannot truly exist if states can nullify its laws, so it cannot achieve the energetic execution of law the Constitution is designed to secure if states can require federal officials to obtain a court order every time they seek the cooperation of ordinary Americans. Certainly neither California nor any other state would want its own officials to operate under such a burden. Leaving aside whatever we may think about immigration policy, this is not the kind of system that any sober citizen would want, or would think is contemplated by the Constitution.
Although California has not been as barefaced in 2018 as South Carolina was in 1832, its subtleties are nevertheless unacceptably dangerous and inconsistent with the Constitution. Americans would do well to reject those dangerous subtleties in favor of the common-sense simplicity and safety of the principle articulated by Andrew Jackson: “Our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them.”