The New Nullification: State-Level Refusal to Obey Federal Law

December 1, 2015

 

In November 2012, hippies and policy wonks across the nation rejoiced as Colorado and Washington legalized the sale and possession of marijuana. For over forty years, marijuana had been treated under federal law as a substance of equivalent danger to heroin, with enforcement of the Controlled Substances Act largely falling on racial and socioeconomic minorities. Voter initiatives in Colorado and Washington showed that the democratic polity was ready to reject this wasteful federal policy.

 

Since then, Alaska and Oregon have legalized marijuana through voter referendums. Although legalization may be pragmatically beneficial, it presents significant and troubling legal questions. The Controlled Substances Act of 1970, which dictates the extent of federal drug regulation, has not been amended to exclude marijuana. As the Constitution’s Supremacy Clause grants the federal government jurisdiction over areas like drug policy, federal drug laws should make irrelevant any drug legalizations in contravention of the Controlled Substances Act. Legalization has only moved forward because President Obama has directed the Department of Justice to take a step back from prosecuting federal drug offenders, effectively enabling states to experiment with marijuana policy to provide data for an eventual federal reform.

 

Until then, though, at least four states will be acting contrary to federal law. To understand why this is such a novel precedent, it’s necessary to look back to the United States’ initial political crisis over slavery in the 19th century. In protest over the Tariff of 1828, then-vice president John C. Calhoun penned an essay arguing that states as sovereign entities possessed the right to refuse to follow federal directives and laws. After Andrew Jackson condemned nullification publicly, the concept re-emerged several times – when Northern states opposed the Fugitive Slave Act, and when southern states refused to obey the Supreme Court’s decision in Brown v. Board of Education.

 

The important distinction between marijuana legalization and the active denial that Calhoun advocated is that the act of legalization itself is not a denial of federal law; rather, it’s a legal statement contradicted by federal law. Unfortunately, marijuana is far from the most extreme instance of modern ‘nullification’. In response to the Supreme Court’s effective legalization of gay marriage in June 2015 through the landmark case Obergefell v. Hodges, Republican presidential candidate Mike Huckabee explained in a radio interview that “if a decision is rendered that is not borne out by the will of the people…you now have surrendered to judicial tyranny”. Other conservative figures followed suit, arguing that the Supreme Court, an organ of the federal government, lacked the authority necessary to impose its will on the states. Similarly, in the wake of Islamic State’s terrorist attacks in Paris, numerous governors from both parties have declared that they will refuse to comply with the United States’ international refugee resettlement program.

 

These statements are extremely worrying. Federal supremacy extending to the Supreme Court has been reinforced explicitly through the 1958 Supreme Court case Cooper v. Aaron. While the 2012 case Arizona v. United States upheld the federal government’s authority to apply its power with discretion, setting the legal framework for the Obama administration’s allowing states to legalize marijuana, the same principle requires states to comply with policy created through that discretion, like refugee management. At best, an outright refusal to obey federal laws is legally inconsistent and risks important policies becoming political footballs. At worst, this refusal can lead to highly charged confrontations between state officials and the justified power of the federal government, as with Kim Davis.

Nullification would have torn the Union apart had it been successfully used in the nineteenth century. Today, it is no less dangerous – states should not have the ability to refuse to obey controversial policies once they have been declared constitutional. To allow such would be to destroy the entire framework of federalism that has kept the United States a coherent power.

 

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