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AUSTIN: Local support grows for nullification of federal laws

Some scholars say it's illegal but happens unofficially.

By Tim Eaton
AMERICAN-STATESMAN STAFF
Updated: 12:25 p.m. Sunday, Feb. 21, 2010
Published: 1:00 a.m. Saturday, Feb. 20, 2010

The stale old campaign issues education, toughness on crime, taxes have lulled countless voters into inaction for years. But sometimes an issue comes along that energizes a portion of the voting public. This is one of those times.

Politicians and voters haven't discussed the issue of nullification in about a half-century. But now it's back. And several candidates and incumbents are chattering about writing state laws that would neutralize federal ones.

But as the wave of enthusiasm grows, some academics have been waving their arms in an effort to slow the tide by saying that the official nullification of federal laws just isn't legal.

That said, some professors have admitted that a sort of unofficial nullification can sometimes occur.

Republican gubernatorial candidate Debra Medina has been rallying supporters with nullification talk for quite a while now. She might be one of the drivers of the concept's increased popularity in Texas.

At a rally Jan. 16, Medina seemed to be trying to shame Texans into supporting the issue.

"Thirteen-plus sister states have passed nullification language to stop the federalization of health care," she said. "Texas sits on our hands."

She also told the crowd that Montana nullified Real ID, federal legislation passed in 2005 that required states to adopt security and verification standards in issuing driver's licenses.

Medina might own the issue of nullification in the race for governor, but the incumbent hasn't exactly disavowed the concept.

Gov. Rick Perry, who once skipped past the nullification rhetoric and went straight to discussion of secession, has been pretty quiet on the matter lately. But he recently attended a rally in Plano for

the 10th Amendment, which some people believe justifies the nullification of federal laws.

He might not have called for nullification, but his presence at the rally sent a message, said Southern Methodist University political science professor Cal Jillson.

"He is an instinctive politician," Jillson said. "I think he felt like he made his point, which is to establish a connection with the tea party movement and its conversation about an overreaching federal government."

Constitutional scholars, like Jillson, tend to disagree with the pro-nullification voices.

The U.S. Constitution specifically doesn't allow states to nullify federal law, according to Timothy Jost, a law professor at Washington & Lee University. Jost wrote a recent article in The New England Journal of Medicine that said nullification is "pure political theater" and "constitutionally impossible."

Jost's article came after the Virginia Senate passed a bill that would exempt Virginians from being compelled to buy health insurance if it were demanded by federal law.

The legislation was reminiscent of a Texas House resolution by Rep. Brandon Creighton, R-Conroe, from the past legislative session. The unspecific, Perry-backed resolution aimed to give Texas sovereignty under the 10th Amendment over all powers not otherwise granted to the federal government.

The Texas resolution, the Virginia bill and all other nullification-related legislation share a common trait, according to nullification naysayers. None of them is effective, and they would all be overturned if and when the federal government files suit, they said.

"Even a conservative Supreme Court is not going to overturn 200 years of constitutional interpretation," Jillson said.

Jillson and other academics point to the Supremacy Clause (Article 6, Clause 2) of the U.S. Constitution as clear evidence that proves the impracticality of nullification. It says that federal laws "shall be the supreme law of the land."

Words like nullification — and also "interposition," which means states will stand between Washington and citizens to prevent federal law from being enforced — were not used much in the past 200 years.

The words, however, did come up for a time during school desegregation.

In the 1950s and 1960s, segregationists used the terms to argue against racial integration, Jillson said. Their argument was shot down in the famous Supreme Court case Brown v. Board of Education of Topeka, Kan.

But even with the concept of nullification being widely discredited, Medina and a host of other elected officials and candidates have continued to sign pledges to push for legislation in support of the 10th Amendment.

Among the Texans who have signed pledges are Creighton; Rep. Rob Eissler, R-The Woodlands ; Rep. Leo Berman, R-Tyler ; and Darren Yancy , a Republican running to fill the seat of retiring state Sen. Kip Averitt, R-Waco .

Berman has a history of battling the feds. He has proposed laws dealing with undocumented immigrants that even he acknowledged were unconstitutional but basically served to pick a fight with the federal government.

But this time, things are different for him: He said he believes he can beat the federal government in the nullification fight, despite previous Supreme Court decisions that indicate the contrary.

"Supreme Courts change, and they could agree that it is viable or not viable," he said. "The only way to find out is to challenge it."

Berman, who was a candidate for governor briefly last year, said he would support nullification legislation if the federal government, for example, passed laws supporting cap and trade of air pollutants, health care reform or gun legislation.

"Any legislation that appears to be socialist, I will oppose with everything I can," he said. "Anything that the Congress does or the president does that is not authorized by the U.S. Constitution should be left to the states and

should be challenged by the states."

U.S. Rep. Ron Paul, a Republican from Texas, usually is revered by people in the nullification crowd, including Berman. But in a speech at Arizona State University late last year, Paul said official nullification won't work.

"It was never really successful in our history," he told the crowd. "But I think it's going to grow in importance. And I think it's going to grow because the government, the federal government, will be seen as inept and ineffective."

But Paul still encouraged nullification activists — and he continues to do so via oft-viewed YouTube videos — to keep up their effort because unofficial nullification can work.

"I think it'll almost be de facto in the sense that the states will eventually just ignore some of the mandates," he told the crowd.

Jillson said Paul's assessment of an unofficial nullification was right-on.

As a case in point, Jillson and other observers pointed to the medical marijuana issue in California. The voters there approved the use of medical pot. And while it remains illegal, according to federal law, the federal government has adopted a policy of not enforcing its law.

The same thing happened with Real ID when the Bush administration delayed its final implementation until 2017 after significant push-back from several states.

Hence, an effective nullification.

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http://www.statesman.com/news/elections/local-support-grows-for-nullification-of-federal-laws-258570.html