Nullification

“Nullification” is the theory that the states have the right to ignore or “nullify” any federal law they deem unconstitutional. Nullification would seem to fly in the face of the Constitution’s Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It was used unsuccessfully by some Southern states to reject integration of their schools. In their decision in Cooper v. Aaron the Supreme Court explicitly rejected the theory of nullification saying in part that Brown v. Board “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation” and asserting that state attempts to nullify federal law are ineffective. Nullification has never been upheld by the U. S. Supreme Court.

California legislators have recently passed a law, the “California Values Act”, effectively making the state of California a sanctuary for illegal immigrants. The Los Angeles Times reports:

California lawmakers on Saturday passed a “sanctuary state” bill to protect immigrants without legal residency in the U.S., part of a broader push by Democrats to counter expanded deportation orders under the Trump administration.

The legislation by Sen. Kevin de León (D-Los Angeles), the most far-reaching of its kind in the country, would limit state and local law enforcement communication with federal immigration authorities, and prevent officers from questioning and holding people on immigration violations.

After passionate debate in both houses of the Legislature, staunch opposition from Republican sheriffs and threats from Trump administration officials against sanctuary cities, Senate Bill 54 was approved Saturday with a 27-11 vote along party lines. But the bill sent to Gov. Jerry Brown drastically scaled back the version first introduced, the result of tough negotiations between Brown and De León in the final weeks of the legislative session.

Is the California Values Act an attempt at nullification? If not why not? If so is nullification justified? When?
Who decides and how do you know?

8 comments… add one
  • Gustopher Link

    Does the federal law require cooperation, or merely authorize cooperation?

    And, has the federal law been tested, at the Supreme Court, as constitutional?

    In the efforts to nullify Brown, the legal issues were settled. Here they are not.

    I would expect that a state government to not comply with an unconstitutional law/policy — I don’t know whether this is or is not a case of that, but I do know that it isn’t settled law one way or the other.

  • Gustopher Link

    A better example might be the marijuana legalization.

    There are no constitutional questions about federal drug laws, and here are a bunch of states getting into the drug business (in all cases just regulating and taxing, I believe), and just challenging the federal government to do something about it.

    I would be hard pressed to find a more clear, modern version of nullification.

  • Andy Link

    Gustopher,

    When can states defy federal law and when can’t they? What is the standard that can be evenly applied? Please be specific.

    And what, exactly, is not settled law? The Supreme court decided that immigration regulation was exclusive federal responsibility in the 1890’s.

    I don’t see how it’s legal for states to take active measures designed to prevent the federal government from fulfilling that responsibility, but I’m willing to hear an argument to the contrary.

  • Bob Sykes Link

    First, Aricle VI, paragraph 2, of the Constitution states that the Constitution, laws and treaties of the US are the supreme law of the land. The Supreme court decides what is and is not a valid state law or constitutional provision. This has been adjudicated several times, and the court s have always unvalidated any attempt at nullification.

    As to marijuana, and possibly other drugs, all state and local laws legalizing it are invalid because federal law and regulation continue in force. What we are seeing is not nullification but prosecutorial discretion. Federal agents have simply been told to stand aside. However, should a federal marshall walk into a medical marijuana store in, say, Denver and arrest anyone in posession and confiscate all the stock, he wold be acting legally, and the perps could be prosecuted.

    I take it no one under the age of 70 has taken a course in civics.

  • What we are seeing is not nullification but prosecutorial discretion.

    I think there’s an argument that when prosecutorial discretion extends beyond individuals to groups or classes it has exceeded the bounds of discretion.

  • Gustopher Link

    Andy, there are a variety of lawsuits currently pending about sanctuary cities, unfounded mandates, etc. The Federal ICE has the right to arrest people, but the whole question is whether the state and local law enforcement is required to assist (and whether they can be forbidden to assist).

    None of that is settled law, so I wouldn’t call the sanctuary state law to be nullification. The state is definitely taking sides in unsettled law there, but deciding to enforce the unsettled law would also be taking sides.

  • Gustopher Link

    Bob, on a Federal level, we are seeing prosecutorial discretion, but on a state level, it is nullification.

    What if a state nullified a law and no one cared? That’s what’s happening with Washington, Colorado, and the rest.

  • mike shupp Link

    I think I see a different game going on here. There’s kind of an ongoing issue with conservatives on voter registration — remember just a few weeks back when a Federal court ruled for the 8th time that a proposed Texas statute was unconstitutional? Pretty clearly conservatives are vesting about for methods that will allow reducing the number of “unacceptable” voters, to make elections safe for Republicans, and once they’ve found a court-friendly formula they’ll be applying it everywhere possible.

    And in states which aren’t dominated by Republicans, liberals with long faces mutter dire things about the plight of Dreamers and people who have ruled ineligible for citizenship because of quotas, and so on, and we find proposals for Sanctuary Cities and prohibitions on cops talking to immigration control officers and so on. Just a guess, but I think when the right formula comes along, liberals will try to apply it in every court in the nation.

    I think it’s going to be very hard to make a case, say, that Texas can discriminate against Hispanics trying to register to vote on a Sunday as they have previously “because of states’ rights”, while maintaining that San Jose can’t provide sanctuary to illegal aliens, no matter what California says about its “rights.” If you love one argument, you’re logically bound to adore the other. Contrawise, if you want to break one of the pair up at the Supreme Court level, let the Court bust them both up.

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