Saturday, August 09, 2014

Support for the Tenth Amendment is not support of nullification

The headline over a recent Dan Bice column says that "For candidates, nullification a key campaign theme."

As it applies to Senate candidate Jonathan Steitz*, there is no evidence ot that. In fact, I'm afraid the column uses the term "nullification" too loosely. Here are a few things to keep in mind.

In it's legal sense, nullification has a very specific meaning. Dan Bice thinks that it is "pretty straightforward" to suggest that Steitz supports nullification because Steitz said, in response to a questionnaire, that he would support a law the questionnaire described as protecting Wisconsin's Tenth Amendment rights and told Bice that he would "resist any effort by the federal government to regulate the ability of Wisconsin citizens to exercise their Second Amendment Rights."

Let's begin by defining nullification - something that Bice neglected to do. It is a doctrine claiming that, because the Constitution was a compact between the states, each individual state is the ultimate arbiter of its constitutional obligations. Each state can "nullify" a federal law that it believes violates the Constitution by refusing to comply with it or, presumably, preventing federal officers from enforcing it within that state's boundaries. No state is bound by judicial decisions with which it disagrees, including those of the US Supreme Court.

This doctrine is typically associated with the resistance of southern states to the abolition of slavery or the enforcement of civil rights laws, but it has a broader history. While the matter is not without dispute, Madison and Jefferson seem to have supported at least some form of nullification and the issue first came to the fore over tariffs, not slavery. Even as it relates to slavery, there were proponents of nullification on both sides of the question. Indeed, the Wisconsin Supreme Court famously refused to abide by an order of the United States Supreme Court in a case involving enforcement of the federal Fugitive Slave Act against those who helped an escaped slave, Joshua Glover, evade federal authorities.

But whatever its more respectable historical provenance, nullification is no longer good law. It is now well established that, under the Supremacy Clause, states are bound by the federal courts' interpretation of the scope of federal authority.

But this doesn't mean that the federal government can order a state to do anything or regulate any conduct within its borders. It does not mean that all resistance to federal authority is nullification.

Assertions of Tenth Amendment rights are not attempts at nullification. Because nullification has to do with who gets to decide the boundary between state and federal power, one cannot automatically call assertions of state sovereignty or claims of federal overreach nullification. If, for example, one claims that the federal government lacks authority to regulate the sale of firearms manufactured and sold wholly within the state of Wisconsin and argues that a federal law which purports to do so is unconstitutional, one is making a claim about Congress' power under Article I and Wisconsin's rights to regulate intrastate conduct under the Tenth Amendment. A claim that a federal law violates the Second Amendment is an argument about the scope of a provision in the federal Constitution. These claims amount to nullification only if one says that Wisconsin has the final say on these matters.

The law introduced by Rep. Michael Schraa - which I take to be the one asked about in the questionaire - doesn't take that extra step - at least not in the version that I've seen. As I understand, it does not prevent federal authorities from enforcing federal law in the state. It only prevents state and local authorities from doing so. (This is not to say that I would support the law; I don't think I would.)

But it does say that Wisconsin law enforcement officials cannot enforce federal laws - presumably without regard to the constitutionality of those laws. Isn't that nullification?

Actually, no.

The federal government cannot force states to enforce federal law. Remember the health care exchanges to be created under the Affordable Care Act? I bet you do. As we all know by now, Congress provided for federal exchanges in states that refused to create their own. It did so because the federal government cannot make states implement a federal regulatory scheme. One of the leading cases on this rule - often referred to as the "anti-commandeering" doctrine - arose in the context of federal firearms regulation.

When Congress enacted the Brady Handgun Violence Protection Act, certain interim provisions required state and local officials to conduct background checks to enforce the law. In a case called Printz v. United States, the U.S. Supreme Court held that this "commandeering" of state and local governments to enforce federal law was unconstitutional. Without knowing precisely how the issue would present itself, it may well be that Wisconsin is within its rights - no nullification - to refuse to assist federal law enforcement. Again, however, the US Supreme Court would have the final say on the question.

Of course, this is not to say that it is a good idea for state and local law enforcement to refuse to assist in the enforcement of federal gun laws. Indeed, some conservatives are critical of states and localities who refuse to cooperate in the enforcement of immigration laws. But these are questions of policy and not nullification.

*By way of full disclosure, I endorsed Steitz  - although the heat generated by that race compels me to say that it was because I thought he was best candidate and not because I thought his opponent was "bad."

Cross posted at Purple Wisconsin


John Mitchell said...

"But it does say that Wisconsin law enforcement officials cannot enforce federal laws - presumably without regard to the constitutionality of those laws. Isn't that nullification?"

Absolutely, with the caveat being (and one that I believe both liberals and conservatives in these matters do not distinctly offer an explanation, hence the accusations of "nullification") the federal law in question is NOT openly declared by that state as being unconstitutional on its face based on its own interpretation of that federal law.

Rick Esenberg said...

No, it's not nullification because it doesn't defy a legal obligation properly imposed on the state by the federal government or interfere with the enforcement of a constitutional federal law (as determined by the courts) within Wisconsin. It just says that the state chooses not to aid in the enforcement of federal law - something that it is generally free to do.

Federal law enforcement can still enforce the law. Even if its true that the federal government, as a practical matter, "needs" the state's help (because it may not have enough boots on the ground) that doesn't make the proposed law legal nullification

Again, I'm not saying its a good idea. I don't think I'd vote for it. But it's not nullification in the sense we are using the term.

Dad29 said...

It just says that the state chooses not to aid in the enforcement of federal law - something that it is generally free to do.

If that extends to Counties, then Moews' (alleged) promise NOT to assist I.C.E. would appear to fall under that premise, as well.