Nullification: Old Arguments Against Feds Get New Life

 

States have confronted the federal government on a wide range of issues. (AP, Getty)

Oklahoma Rep. Lewis Moore got his inspiration three years ago at a conservative WallBuilders gathering in Dallas, where states’ rights proved a popular topic among the dozens of state lawmakers. What fired him up? Scaling back federal environmental oversight and federal spending.

Given the federal government’s messy finances, Moore says his state needs to prepare to “maintain a civil government in an era of chaos.”

Interest in challenging Washington is booming. Some of the enthusiasm can be traced to President Barack Obama’s election in 2008 when worries of a "government takeover" of health care and new gun control measures first began to spread. This year, talk of new federal gun regulation has re-energized the states’ rights movement across the country. Dozens of gun-related bills have been introduced this year as lawmakers point to a renewed urgency and worry of an overreaching federal government.

States’ rights battles of the 1950s and 1960s focused on civil rights, and more recent efforts have been driven by the Second Amendment. Today’s movement is broadening into new subjects, from drugs and health care to homeland security. As the perception of an ever-growing Washington has flourished, so has the drive to push back on more fronts and in novel ways.

“We have just gotten woken up, like a lot of people,” says Moore, who heads the new Oklahoma’s States' Rights Committee, an outgrowth from the Dallas WallBuilders convention. “What we’re saying is we have the power to nullify those laws that are unconstitutional.”

If the latest interest in turning back Washington’s reach is relatively new, the methods are not. As Stateline has reported, myriad issues have strained the relationship between the state and federal governments for years.

“You will always have these types of conflicts in the United States federal system,” says Joseph Zimmerman, a professor at Rockefeller College of Public Affairs and Policy at the University of Albany State University of New York. “This is what you’re going to continue to have: people pushing states’ rights.”

Lately, as the number of issues spurring conflict has grown, so has the tenacity of the fight. For example:

  • Legislation has been introduced in at least 16 states this year that would nullify new federal gun laws. In a twist, some bills would make it a crime to enforce such measures. A Pew Research Center survey this week found 58 percent of Republicans say states should be able to ignore federal gun laws. Just 38 percent of independents and 18 percent of Democrats agreed. (The Pew Research Center and Stateline are both projects of The Pew Charitable Trusts.)
  • Lawmakers have also proposed making it a crime to carry out Obama’s federal health care law. Twenty states had enacted laws opting out or blocking parts of the law as of Jan. 1, according to the National Conference of State Legislatures. More than 200 such measures have been proposed since the law passed in 2010.
  • Similarly, more than a dozen states have flouted federal drug law by allowing medical marijuana – and Colorado and Washington recently legalized the drug for recreational use.
  • Immigration has provided another flashpoint. Gay marriage, too, has been brought into the argument, as states allowing these unions have fueled the fight against the federal Defense of Marriage Act that prohibits the U.S. from recognizing them.

Lawmakers are coordinating and discussing their efforts. An online forum operated by a website called ConservativeStates.com features updates from around the country on various states’ rights-type measures moving through the legislature. Posts frequently highlight a novel measure in a given state or a proposal that has gained traction.

There is also a growing interest in commissions, task forces and panels designed to investigate, scrutinize and, eventually, oppose federal laws that lawmakers deem overly burdensome or unconstitutional. The organized approach, advocates say, reflects the growing coordination among those looking to assert states’ rights.

“We’ve just took it and took it and took it and took it,” says Mississippi Rep. Gary Chism, who this year proposed a Joint Legislative Committee on the Neutralization of Federal Laws. “But in the last four to five years, a lot of us are speaking up and saying, ‘Enough of this mess.’”

The new battlegrounds this year perhaps have the most potential to upend the common thinking of states’ rights, often assumed to be dominated by Republicans. In particular, advocates have keyed in on worries about drones and other criminal justice issues, some of which have melded the political left and right into an unlikely alliance.

In Michigan, for example, the Senate unanimously passed a measure saying the state wouldn’t comply with a provision of the National Defense Authorization Act which critics say could allow American citizens to be held indefinitely without trial on suspicion of terrorism. Among the advocates for the bill were the ACLU and local tea party groups.

“We’re telling the United States government, ‘We will not cooperate with you,’” says Sen. Rick Jones, a lead sponsor of the bill who is a former sheriff with three decades in law enforcement. “As a state, we’re asserting the 10th Amendment” that supports states' rights.

The ultimate effectiveness of the Michigan proposal – or any of the other measures challenging Washington – remains to be seen. Jones cites northern states’ fight against the Fugitive Slave Act in the 1800s as precedent for states challenging laws deemed unconstitutional. But the overarching supremacy of the federal government on many issues casts doubt on how much of a difference some of the measures will ultimately make.

What’s more, many of the bills are dismissed by critics as anachronisms, throwbacks to an earlier time, or a sop to conservatives simply rebelling against a federal government they oppose more out of distaste for Obama than policy disputes. The gun measures, in particular, are dismissed by some as more rallying cry than policy proposal.

“They got nervous because their guy’s not in charge anymore,” says Mike Maharrey of the Tenth Amendment Center, specifically referencing some of the Homeland Security measures that started under the George W. Bush administration. “We’re still at the point where people are apt to grasp onto it for the issue that’s particularly close to their heart.”

Maharrey and others say there is potential for more alliances of strange political bedfellows as the issues for states’ rights multiply. He cites drones and indefinite detention as one possibility, along with opposition to federal drug laws that have united the left-leaning liberals and right-leaning libertarians for a common end.

“More people are beginning to look at the basic concept,” Maharrey says. “At the core, most Americans believe in keeping government as close to home as possible.”

The states’ rights movement isn’t without recent victories of its own, either, even if the high-profile fights to nullify health care reform, for instance, haven’t led to complete success. The increasing acceptance of medical marijuana is seen as perhaps the movement’s biggest win, but the continued delay of the Real ID Act, which would nationalize ID card standards and was first passed in 2005, is seen as another.

Oklahoma’s Moore says he hopes to host a “nullification convention” later this year where lawmakers can discuss states’ right issues and how to fight back against Washington. At the least, these efforts seem likely to spawn headaches for the federal government.

“Simply refusing to cooperate with these federal laws makes it very difficult for the federal government to implement them,” the Tenth Amendment Center’s Maharrey says. “The process continues.”

 

 
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