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Living, Dead, and Undead: Nullification Past and Present Author(S): James H The Jack Miller Center Living, Dead, and Undead: Nullification Past and Present Author(s): James H. Read and Neal Allen Source: American Political Thought, Vol. 1, No. 2 (Fall 2012), pp. 263-297 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/10.1086/667615 . Accessed: 10/07/2013 12:57 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The University of Chicago Press and The Jack Miller Center are collaborating with JSTOR to digitize, preserve and extend access to American Political Thought. http://www.jstor.org This content downloaded from 152.65.133.249 on Wed, 10 Jul 2013 12:57:26 PM All use subject to JSTOR Terms and Conditions Living, Dead, and Undead: Nullification Past and Present JAMES H. READ and NEAL ALLEN ABSTRACT Nullification is considered an antebellum relic. But recently several state legislatures have passed or introduced bills asserting a state’s right to judge federal laws uncon- stitutional and block implementation within the state. Policies today targeted for nul- lification include health care regulation, firearms law, and birthright citizenship. This essay examines the constitutional theory of nullification in its antebellum, 1950s, and contemporary variants. Madison’s “double security” federalism is contrasted with Calhoun’s nullification doctrine. Nullification today advances different purposes than in the past, but its axioms echo Calhoun’s and are incompatible with the Fourteenth Amendment. A federal union grounded on popular sovereignty responds to constitu- tional understandings of nonjudicial actors; thus, nullification bills have practical ef- fects even if rejected in federal court. Nullification today inhabits a politically polarized climate, like the 1850s, where two states might nullify federal law in oppo- site directions. Nullification legislation “sends a message” better communicated in other ways. The proceedings of state legislatures usually make dry reading. But not always. Sometimes they reveal a present we thought was past and a consti- tutional debate we thought was settled. On February 16, 2011, the Idaho House of Representatives, by a 49-to-20 vote, passed House Bill 117, An Act Relating to State Sovereignty and Health and Safety, which declared the Patient Protection and Affordable Health Care Act of 2010 (the federal health care reform) to be “void and of no effect” within the state of Idaho—here deliberately echoing Thomas Jefferson’s James H. Read is professor of political science, College of St. Benedict and St. John’sUniversity, 37 South College Ave., St. Joseph, MN 56374 ([email protected]). Neal Allen is assistant professor of political science, Wichita State University, Campus Box 17, 1845 Fairmount, Wichita, KS 67260 ([email protected]). The authors thank the anonymous reviewers of this manuscript for their very helpful comments and suggestions. American Political Thought: A Journal of Ideas, Institutions, and Culture, vol. 1 (Fall 2012). 2161-1580/2012/0102-0004$10.00. © 2012 by The Jack Miller Center. All rights reserved. This content downloaded from 152.65.133.249 on Wed, 10 Jul 2013 12:57:26 PM All use subject to JSTOR Terms and Conditions 264 • American Political Thought • Fall 2012 Kentucky Resolutions of 1798.1 The bill invoked the “Sovereign Power” of Idaho to “interpose between said citizens and the federal government, when it has exceeded its constitutional authority.” The proposed nullification was not limited to the much disputed individual mandate but extended to the entire law, on grounds that the state possessed “sovereign power to provide regulatory oversight of insurance content, coverage, benefits and beneficia- ries within the state of Idaho.” The legislation stipulated that no provision of the federal law may be enforced or administered by any “departments, political subdivisions, courts, public officers or employees” of the state and that citizens of Idaho would be entitled to injunctive relief in court against anyone implementing the law. House Bill 117 closed by asserting that because “an emergency is declared to exist,” nullification would go into effect immediately upon passage. The bill text closely resembles language recommended by the Tenth Amendment Center, an activist organization committed to the principle of state nullification as a remedy against “uncon- stitutional federal laws and regulations.”2 House Bill 117 failed in the Idaho Senate, which like the House has a Republican majority. One Republican Senate leader said he “agreed the health care overhaul passed by Congress last year was unconstitutional” but “couldn’t support a bill he thought also violated the U.S. Constitution” (Associated Press 2011). On April 20, Idaho’s governor, Butch Otter, issued an executive order barring state agencies from complying with the federal Patient Protection Act (Idaho Office of the Governor 2011). A 2011 North Dakota bill, Senate Bill 2309, introduced under the title Nullification of Federal Health Care Reform Law, declared the Patient Pro- tection Act to be “null in this state” and imposed criminal and civil penalties on any federal official, state official, or employee of a private corporation who attempts to enforce the Patient Protection Act. Unlike Idaho’s House Bill 117, North Dakota’s Senate Bill 2309 passed both houses of the legislature and was signed into law—but only after it was amended to delete the crim- inal and civil penalties and all explicit references to nullification.3 1. Sixty-First Idaho Legislature, 1st Regular Sess. (2011), H.B. 117 (http://legislature.idaho .gov/legislation/2011/H0117.pdf). 2. The organization’s mission statement reads, “The 10th Amendment Movement is an effort to push back against unconstitutional federal laws and regulations on a state level. The principle is known as ‘nullification’ and was advised by many prominent founders” (www.tenthamendmentcenter.com/the-10th-amendment-movement/). 3. Legislative Assembly of North Dakota, 62d Sess. (2011), S.B. 2309. For text as originally introduced, see http://www.legis.nd.gov/assembly/62-2011/documents/11-0742- 02000.pdf; for text as ultimately enacted, see http://www.legis.nd.gov/assembly/62-2011 /documents/11-0742-07000.pdf. This content downloaded from 152.65.133.249 on Wed, 10 Jul 2013 12:57:26 PM All use subject to JSTOR Terms and Conditions Nullification Past and Present • 265 Recent nullification efforts are not limited to health care policy but instead cover a wide range of political and constitutional disagreements between the fed- eral government and states, including firearms law, land use, commercial and environmental regulations, and Fourteenth Amendment birthright citizenship. In its 2010 legislative session, Utah enacted at least three pieces of nullification- oriented legislation: House Bill 67, directed against the federal Patient Protec- tion Act; Senate Bill 11, which nullifies federal firearms law as applied to firearms “manufactured in the state for use within the state” (similar legislation has passed in Idaho, Montana, Wyoming, Arizona, Tennessee, and Alaska); and House Bill 143, an act proclaiming the state’s right to use its power of eminent domain to seize federal lands located within the state.4 The 2010 Utah health care bill (H.B. 67) speaks of “opting out” of the federal health care law, thus rhetorically stopping short of the Idaho bill mentioned above, which explicitly calls the federal law “void and of no effect.”5 House Bill 67 blocks not only the individual mandate but “any part of federal health care reform” (emphasis added) deemed to infringe on the state’s asserted right to regulate all commercial activity occurring within its boundaries. Utah’s constitutional justification for “opting out” of federal health care regulation is similar to that underlying Senate Bill 11, the Utah State-Made Firearms Protection Act, which opens by proclaiming the state’s “sovereign” powers under the Ninth and Tenth Amendments and then asserts that Congress has authority to regulate interstate commerce only with respect to “basic materials,” not items manufactured within the boundaries of a state—a claim clearly not limited to firearms and that would overturn all US Supreme Court post-1937 precedents upholding expanded congressional power under the commerce clause. Most revealingly, the legislation asserts that Congress’s constitutional powers to regulate commerce shall be limited to how they were understood in 1896 “at the time that Utah was admitted to state- hood,” which suggests that the state of Utah is the rightful judge of where the line between federal and state authority shall be drawn in matters affecting the state. Senate Bill 11 was signed into law despite Utah’s Office of Legislative Research report that the law was “highly likely to be held unconstitutional under the United States Constitution’s Supremacy Clause.”6 The “Firearms Freedoms” bills enacted in six other states likewise assert, in nearly identical language, a 4. Utah Legislature, 2010 General Sess., Health System Amendments, H.B. 67 (http:// le.utah.gov/2010/bills/hbillint/hb0067.htm);
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