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.