Nullification of Federal Law
By Jeff A. Benner
What is Nullification?
There is a large movement among the states that has been regularly reported in the alternate media, but pretty much ignored in the mainstream media, that may potentially cause a serious problem between the states and the federal government. This movement is the proposal of "nullification" bills in state governments to nullify, or violate, federal law. To understand what nullification is we need to understand how the Constitution of the United States works, which unfortunately, most Americans do not.
The Constitution and the Supremacy Clause
Every citizen and government agency, including city, county, state and federal governments, are bound to the authority of the Constitution and any law passed by a government agency must be in compliance with the Constitution, just as Article VI, Clause 2 (often called the "Supremacy clause") of the United States Constitution states, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound..."
Most Americans have come to believe that, because of the "Supremacy clause," the federal government has carte blanch authority to pass any law it deems necessary, but this is definitely not the case. Note that the Supremacy clause states that the "laws of the United States" (Federal Law) that are "made in pursuance of" (in accordance with) the Constitution are supreme in the land. In other words, federal law is supreme in the land only if it conforms to the Constitution.
The Tenth Amendment of the Constitution further clarifies the role of the Federal Government when it states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." What this means is that the federal government is restricted to enacting laws only where they are given specific authority to do so in the constitution. If the constitution is silent on any issue, the federal government has no authority and the authority rests with the states or the people.
An example of the interaction between the Constitution and the roles of state and federal governments can be seen in the issue of alcohol prohibition. Throughout the history of the United States many people wanted to make alcohol illegal, but because the constitution does not give the Federal government authority over alcohol, the Federal government was unable to enact any law on the issue, but was instead left to the states and the people to decide the issue and some local and state governments enacted laws prohibiting alcohol. In the early 1900s the Federal Government decided to get involved and make alcohol illegal in the United States, but the only way they could do this was to amend the Constitution to give them that authority, which they did in 1920 with the passage of the eighteenth amendment. Prohibition turned out to be a complete failure and the eighteenth amendment was repealed with the twenty-first amendment.
The Constitution and the Commerce Clause
One of the specific areas of Federal control, granted to it by the Constitution, is Article I, Section 8, Clause 3 of the constitution (often called the "commerce clause"), which states, "[The Congress shall have Power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."
The recent debate and legality of the sale of unpasteurized (raw) milk is a good example of how this commerce clause works. The federal government has determined that the drinking of raw milk is harmful to one's health (even though humans have been drinking raw milk for thousands of years and many advocates of raw milk claim it is healthier than pasteurized milk). But because the constitution does not give the federal government authority to regulate foods, and the tenth amendment gives the authority to the states, each state may decide for itself if they will make the sale of raw milk legal or not and not the federal government. However, because of the commerce clause, which grants the federal government authority to regulate commerce across state lines, they can and have made it illegal to sell raw milk across state lines.
A similar issue to the prohibition of alcohol also arose in the early 1900s, hemp. Prior to 1937 hemp, or marijuana, was a legal crop in the United States, but the federal government decided to ban this crop, but instead of amending the constitution as they did with alcohol, they instead chose to use the commerce clause in order to regulate it without amending the constitution.
The Federal government claimed that the growing of a crop may affect the sale of crops in other states and therefore, according to the commerce clause, this gives the federal government the authority to regulate crops. Because hemp was a legal crop the federal government gave themselves the authority to regulate hemp, but instead if regulating it, they outlawed it.
Since then, the commerce clause has been used by the federal government on many occasions to pass laws in areas where they are not specifically given the authority to do so from the Constitution. One example is the 1974 "National Maximum Speed Law," which set the maximum speed limit across the nation to 55 MPH. Because the constitution does not grant the federal government authority to regulate travel, they used the "commerce clause" and required states to set their maximum speed limit law to 55 MPH if they wanted to receive federal funding for highway repair.
Retrospectively, many today are beginning to believe that the federal government is overstepping its authority and believe the use of the commerce clause to force laws, such as a national speed limit or the outlawing of hemp, as an abuse of the commerce clause and are unconstitutional laws.
Challenging an Unconstitutional Law
If a politician believes a federal law to be unconstitutional, his first course of action is to take his case to the Federal Judicial System, who will then rule on the constitutionality of that law based on their interpretation of the Constitution.
In 1990 the Federal government, using the commerce clause, enacted the "Gun-Free School Zones Act" making it illegal to possess a firearm in any school zone in the United States. In 1995 the Supreme Court ruled, in the "United States v. Lopez" case, that this law was unconstitutional as there was no clause in the Constitution authorizing the federal government to regulate firearms in a school zone and ruled the law as an unconstitutional exercise of Congressional authority under the Commerce Clause.
While there is nothing in the constitution giving the Federal government the authority to regulate firearms the federal government banned and made restrictions on specific weapons by passing the "Violent Crime Control and Law Enforcement Act" in 1994 by using the commerce clause (if you're starting think the federal government can pass any law it desires using the commerce clause, then you're starting to understand the problem). Many politicians believed that this Federal ban on firearms was not only in violation of the Tenth Amendment, it was also a violation of the second amendment, which states, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The Federal government is proposing new bans and restrictions on firearms, which is considered unconstitutional by many states. Because the federal court has already ruled such restrictions and bans as constitutional, the states only have one recourse left, nullification.
Nullification of an Unconstitutional Law
Nullification is the process enacting a state law that nullifies, or invalidates, any federal law which that state has deemed unconstitutional.
The idea of nullification was first proposed in Thomas Jefferson's draft of the Kentucky Resolutions of 1798, where he wrote, "nullification...is the rightful remedy" when the federal government reaches beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison said the states were "duty bound to resist" when the federal government violated the Constitution.
In the past, nullification by the states has been rejected by the Federal Courts because it conflicts with the Supremacy Clause of the Constitution which they interpret to mean that Federal Law and not State Law are supreme in the land. As you can imagine, the introduction of nullification laws by the states can cause a strong rift between the federal government and the states.
Several states, recognizing the unconstitutional prohibition of marijuana, have passed nullification bills, in defiance of federal law, legalizing marijuana.
To date, over half of the states have introduced nullification bills to nullify any future federal firearm laws. Some of these bills make it a criminal offense for agents of the federal government to enforce what they call, illegal, unconstitutional usurpations of power. As an example, Wyoming's H.B. 0104, the "Firearm Protection Act," threatens federal officials with up to five years in prison and $5,000 in fines if convicted of attempting to enforce unconstitutional statutes or decrees infringing on the gun rights of Wyoming citizens.
Many states are also introducing bills to nullify other federal laws, which they deem unconstitutional including the Patient Protection and Affordable Care Act (PPACA, also called Obamacare) and the National Defense Authorization Act (NDAA).