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Resistance Yes, Nullification No

This week, I’m drumming my ConLaw students through the nullification debates. Also, the local newspaperman decided that the Greves are probably entitled to some paper(s), though not necessarily the one(s) they ordered. Though probably unrelated, the events invite reflection. Trust me: there’s a point.

The Post

Yesterday, we received (after complaint) our daily Washington Post. It contained an editorial (“Republicans in the way”) bemoaning the sustained opposition of GOP-governed states to the Affordable Care Act: they’re refusing to expand Medicaid and to establish health care exchanges. They’re refusing to enforce the ACA’s consumer protections and otherwise impeding the implementation. Outrage: Republicans lost the ACA debate. They are “entitled to be unhappy,” but

[t]hey are not entitled to obstruct and flout the laws of the United States. On the contrary, they have an obligation to cooperate in good faith with wholly legitimate laws duly passed and reviewed by all three branches of government.

This is creepy, stupid, and wrong. Even if you think of Obamacare as a purely partisan affair, the ACA was “duly passed” by brute force and bribes, There has never been anything like it over the past century; and in any event, what theory of democratic government says that the losers are entitled to “be unhappy”—but not fight back?

More to the point, this isn’t a purely partisan issue but a federalism issue: the feds passed the ACA, and the Republicans the Post complains about—the folks who are falling down on their “obligation to cooperate in good faith”—are state officials. In point of fact, they are under no such obligation. Indeed, that is the genius of our federalism.

EU member states are under a general obligation of “solidarity.” (The EU has utilized that clause to put operative provisions, such as an ironclad prohibition against bailouts, out of operation.) Many other federal constitutions contain similar cooperation mandates. The Articles of Confederation contained such a mandate or promise (Article XIII). The Constitution does not (even though it adopts a ton of other stuff from the Articles). And if that isn’t conspicuous enough, the Constitution actually does impose cooperation mandates on two sets of actors: judges “in each state,” who are bound by the Supremacy Clause; and the President, who must “faithfully execute” those laws.

As for states and federalism, in contrast, the principle of the Constitution is precisely not cooperation; it is competition and push-back. Governors who reject Medicaid funds aren’t “obstructing” or “flouting” anything at all: they are merely rejecting a federal contractual offer they have no obligation to accept. A governor who refuses to establish a federal exchange isn’t “obstructing” or “flouting” anything, either: he or she is simply telling the feds to enforce their own damn laws, and good luck. This right to refuse offers and orders isn’t a bug: it’s what distinguishes our federal system from a “government over governments” that begs, pleads and cajoles, Post-style, for state “cooperation in good faith.” That’s not the government the Founders fought for; it’s the government they desperately tried to fix.

If you don’t comprehend that much, I tell my students, you won’t comprehend much else. As for the Post, it‘s obviously too late.

The Times

State refusal to cooperate in Obamacare is a real hope for constitutional federalism and more limited government. However, hostility to the feds and Tea Party agitation have also given rise to state-based efforts to “nullify” federal law—not to refuse cooperation, but to declare federal law inoperative in the state (as some states have done with respect to gun laws and other federal rules). Those are very different things.

The crucial distinction is illumed, most improbably, in the New York Times, delivered, equally improbably, to my doorstep this morning. (I cancelled the subscriptions eons ago, in response to why-is-dad-always-angry-at-breakfast complaints.) I flipped to the op-ed pages for amusement value (Frank Rich, on the mayoral candidates’ shocking indifference to composting and to the plight of transgendered orphans in Absurdistan) but instead found Robert A. Levy’s sensational, much-needed piece on “The Limits of Nullification.”

Bob articulates the key difference much more concisely than I have ever managed. Beyond that humiliating point, though, it matters who says it. Mr. Levy is the Chairman of the Cato Institute. Here, he is putting down a marker on how far Cato will go in supporting Tea Party constituencies that rebel against federal impositions; and his marker is the constitutional line. Compliance with federal mandates and “incentives”? No way. But we can’t run around playing the First, Second, or Fifth Amendment as a trump card—and then say that federal law doesn’t apply when states don’t feel like it.

This is huge. Talk to any hard-core conservative AG or SG: they’ll complain about federal overreach in one sentence and about “nullifiers” in their legislatures in the next. They’ve been elected to resist federal impositions, and they will. But they’ve also sworn to uphold the Constitution; and they are terrified that if and when they do so, the populist forces that brought them to office threaten to eat them alive.

The eat-your-children spirit animates a ton of people who also support the Cato Institute and who carry the Constitution in their hip pockets. It is, however, the Washington Post in reverse: the “constitutional” test is solidarity, or resistance. It spells the death of constitutional government. Against it, Bob Levy the lawyer insists on the constitutional forms, and Bob Levy the strategist and citizen seeks to domesticate and to constitutionalize civic rage and discontent.

What a gutsy, honorable, and necessary thing to do.

Reader Discussion

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on September 05, 2013 at 11:41:08 am

But what if our problem is not really the government under the constitution, but government under an incorporated Federal Government. There are sites on the internet calling attention to this issue. While I have known of the incorporation for sometime, I had not considered that it might be a part of our problem. In other words, are there cases in our courts, where the judges simply ignore the constitution, citing the laws of commerce, etc.?

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dr. james willingham
on September 05, 2013 at 14:13:58 pm

I am no "nullifier", yet I find myself , at times, quite sympathetic to their plight.
Mr Levy's piece is, of course, spot on - both in its assertions and recognition of the "Tea Party" zeal problem.

Nevertheless, when you consider how limited is the actual recourse available to the States, it is, at best, disconcerting. As Levy and one of the commenters on his piece have shown, the States may not even have standing to challenge the constitutionality of a Federal Statute. Must the state then go ahead, pass their own law prohibiting enforcement of a Federal statute, in order to simply get a day in court.
And what then? The Court has provided ample evidence of its willingness to create / deny both individual and / or governmental rights. Ever since Marshall arrogated to the Court the role of final arbiter, we have been subject to the "wisdom" (whim, perhaps) of the most undemocratic, non-representative and unaccountable branch of our supposedly co-equal governmental branches.

If one wants to argue that the response of the States should be within the Constitution, then let it be demonstrated that the Constitution does, indeed, assign the court the role of the final arbiter. While I am aware that Madison, Jefferson, et al recognized that the court should possess the power of judicial review, nowhere do I find them asserting that it should be the final arbiter of the law. You are more familiar with their commentaries than I, but they always perceived the court as a non-threatening, weaker branch.
Well, I guess they could not be right about everything!
Unfortunately, we are stuck with their error and a Congress and Executive that does not exercise its own powers in this regard.

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gabe
on September 06, 2013 at 08:35:49 am

To discuss the Constitution today, and how it applies to the "law," is the height of folly and a waste of time. The American Constitution died and was buried decades ago. We don't live in a land of "law" but in a land of powerful men. The Republic died with the imposition of the 14th,16th,17th Amendments,the New Deal,The Great Society,The U.N. Treaty,the Civil Rights Act and a thousand other cuts. I wish more people would realize this fact and stop speculating on what this State or group will do to turn back the Federal Tsunami. Its years too late.

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libertarian jerry
on September 06, 2013 at 09:55:06 am

Libertarian Jerry seems to believe that we live, to paraphrase Harrington, under the empire of man, and not the empire of law. To my eye, this is false, especially at the local level, where the rule of law seems alive and, if not well, at least not yet dead. We do not live in anarchy, in most neighborhoods. And property is, if not as secure as we might like, nonetheless sufficiently secure to undergird a capitalist and consumer economy (people will not buy stuff, if they doubt the security of their possession of the stuff they acquire). It is also, again to my eye, false at the national level. The constitution exists to create a government that, to paraphrase Madison, can exert appropriate control over its people (ie., provide the rule of law), and can control itself. Powerful men have always been a threat to republican government, and even good men become corrupted by power. But here too, we cannot say that the various checks and balances by which government controls itself have utterly failed us. We are seeing right now an excellent demonstration, in the argument over what to do about the situation in Syria, of checks and balances in operation.

Libertarian Jerry is too pessimistic. The kind of pessimism he expresses strikes me as dangerous, because it easily slides into apathy, or worse, withdrawal of allegiance and commitment, or even worse, active resistance. Our country is not what we would wish it was. But even despite that, it is worthy of our commitment, of our love, and of our active engagement to improve it.

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Kevin R. Hardwick
on September 06, 2013 at 11:29:30 am

Very well said, Kevin!

I would add that it also is conducive of apathy in others. Being constantly besieged with "negativity" about our country does, indeed, cause many to either lose faith or the willingness to combat that which is wrong in our government.

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gabe
on September 06, 2013 at 16:46:09 pm

Though I agree with some of what you wrote, Prof. Greve, I can't agree with your assertion that there hasn't been anything passed by Congress in the last century that required the bribes and the arm twisting found in the ACA's passage. One only needs to look at Pres. Bush's Medicare prescription drug plan of 2003 and the fallout, including ethics violations by then Speaker DeLay, to see bribes and arm twisting.

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Chris Cavanaugh
on September 06, 2013 at 20:18:37 pm

"There has never been anything like it over the past century"

You mean except for Social Security, Welfare, Medicare, Commerce Clause expansion, Drug War, etc, etc, etc.

I also degree that there is anything wrong with nullification. It is absolute resistance, and it makes the Feds nervous, while putting SCOTUS on "NOTUS" that there is DRAMATIC disagreement over the Constitutionality of many of these laws.

We canNOT live in a country with 51% wanting something makes it "Constitutional"

I'm an advocate for throwing everything AND the kitchen sink at Washington. The States have just as much to nullify an unconstitutional law as Congress has to pass it.

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John Ashman
on September 06, 2013 at 20:19:53 pm

It's never too late.

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John Ashman
on September 07, 2013 at 11:35:20 am

Michael--

As I read your comment above about the Washington Post commentary, you seem to be implying that a law that is passed by arm-twisting, special provisions to particular state or local interests, and so on, is not rally a law and does not have to be followed. By this logic, the Compromise of 1850--to pick just one example with which I am familiar--was not legal, because it involved a species of bribery that we sometime refer to as "horse trading." Leaving aside the merits of the law, doesn't the fact that it was passed by a legitmately sitting legislature oblige me to follow it?

I like much the logic of the rest of the essay, since you carefully distinguish between those places where it is legally permissible to oppose, and those where not. But I took the comment in the post--which you reject as "creepy"--to mean precisely that. Republicans can use legal means to oppose the law--but they are not free just to ignore it. If they are, doesn't that throw into question the whole principle of the rule of law?

I ask this question innocently, and not to disagree with you or to take issue with your argument. But I don't follow you here, and would I suspect profit from any clarification you have time to make.

Many thanks in advance.

Kevin

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Kevin R. Hardwick
on September 07, 2013 at 11:45:11 am

Kevin Hardwick's attitude is the attitude of the "average" German citizen during the reign of Adolph Hitler and his Third Reich. That is,despite Hitler and his Nazi gangsters,my country right or wrong. If telling the truth is negative,pessimistic or unpatriotic then so be it. None are so blind as those who refuse to see. And what is seen is that America is sliding into a bankrupt police state.

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libertarian jerry
on September 07, 2013 at 12:57:58 pm

LOL. The first guy in a discussion to bring up a comparison to Nazi Germany is almost always the guy who is losing the argument.

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Kevin R. Hardwick
on September 07, 2013 at 14:07:52 pm

Let's leave Libertarian Jerry's pessimism and rage aside, and return to the substance of the conversation. Our constitution and current political order merits our allegiance for the following reasons:

1.) for all of its evident imperfections, and for all of the steady decline over the last hundred years, our political order (following Locke in the Second Treatise) still does an adequate job of securing protection of property, health, life, and liberty of our citizens. Has there been real and disturbing decline? Of course. Is our situation today getting worse? Yes. But for all of that truth, it is still the case that our public order is still creaking along. We can see that easily in our day to day lives.
2.) The United States is still a capitalist society, and the market is still, relatively speaking, free. Could it be better? Of course. But it is pretty demonstrable, for anyone willing to see, that people buy stuff, and they do that because they are confident that they will be able to keep what they purchase. Of course, if people like LJ persuade our Congress to repudiate the debts that they have authorized our Government lawfully to contract--that is, to my eye, precisely the kind of meddling with security of contract that for guys like James Madison made it necessary to implement a new Constitution--then we may very well wind up living in a morally bankrupt society. But that strikes me as the topic of another conversation.
3.) For all of its evident and manifest flaws, the United States is not, in a moral sense, bankrupt, nor is it a police state. To term it so displays a pretty real lack of understanding of just what it means to live in a state that is morally bankrupt or a police state, or both. The United States is in no sense comparable to Hitler's Germany or Stalin's Soviety Union. We are still, for all of our decline, better than that.
LJ is correct that we must see the world for what it is, and not for what we want it to be. But it is equally an error to see the world as we fear it must be--and that is precisely the error he commits. When lots of people submit to their fears, and surrender to cynicism, that has civic consequences that, ironically, may bring into being precisely that which they fear.

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Kevin R. Hardwick
on September 07, 2013 at 18:46:25 pm

I think the problem here is now where we stand on the scale, but the direction we are going, nearly unabated.

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John Ashman
on September 07, 2013 at 18:54:18 pm

John--

No argument that we are going in the wrong direction, and have been for some time. But judged by the basic measures of what we want a government to do, and likewise in comparison to truly oppressive regimes elsewhere in the world, we have a very long way to go before it is reasonable to compare the United States with either Germany or the USSR in the 1930s. We have no one remotely like a Lavrentiy Beria or a Heinrich Muller in our government, and it is highly unlikely that anyone in our government today could exercise the kind of oppressive and tyrannical power as they did. I think such a comparison is offensive, and likewise does an enormous disservice to the officers and enlisted men of our armed services, who put their lives on the line in order to preserve our regime, not as idealized by radicals like LJ, but as it currently exists.

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Kevin R. Hardwick
on September 09, 2013 at 10:34:25 am

Comparison doesn't mean equation.

It is also a perfectly valid way of looking at historical events and being aware of possible future ones. We can't simply take these types of comparisons off the table, because there's validity to them. What will happen if 20 years from now, the "War on Terror" is still being waged at devastating cost? Will there not be impetus to end it at any cost? I'm not offended even slightly by the comparison. Why would I be? I don't have a "patriotic" instinct to love my country no matter what, I didn't birth it.

Also, "radical" is not the correct pejoritive, nor a pejoritive except by context. Any originalist is a "radical" almost by definition.

I see far too many similarities between 1930s Germany and the USSR to be dismissed. What you are doing is engaging in a type of political correctness that demands that certain types of criticisms must not be made, because they are "offensive". I disagree entirely. I think criticism should be smart and thoughtful most of the time, though many personality types don't do well with PC criticism and require something a bit more abrasive to catch their attention. If water rolls off a duck's back, try crude oil.

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John Ashman
on September 09, 2013 at 10:37:11 am

Losing faith government is the first step in making a positive change.

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John Ashman
on September 09, 2013 at 10:39:44 am

BTW, not calling you the duck, but we are run by ducks and told how we must behave by ducks, who don't understand polite things like "you're trampling my liberty". The only thing that affects a "do-gooder" is being directly compared to great evil. That bothers them.

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John Ashman
on September 25, 2013 at 23:47:31 pm

[…] these points. Greve’s call for “national scale” makes this obvious, but he even explicitly denounces nullification in a separate essay on that topic. Moreover, Reinsch’s refusal to advocate interposition and nullification is also […]

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Image of Real Federalism Includes Taking Interposition and Nullification Seriously | Nomocracy In Politics
Real Federalism Includes Taking Interposition and Nullification Seriously | Nomocracy In Politics

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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