Were shutdowns over defense, the Fairness Doctrine, crime policy, civil-rights legislation, foreign aid, and drilling on federal land attempts to delegitimize Reagan in his first term? How about O’Neill’s successful defunding of the MX- and Pershing-missile programs? Was the implication here that Reagan’s presidency should be “nullified”? And what about the second term? After Reagan’s policies on labor contracts, offshore oil rigs, and welfare were “upheld” by the people in the 1984 election, O’Neill continued to fight them so hard that he shut down the government in their honor in 1986. “All of those,” the Washington Post’s Dylan Matthews noted in his compendium of American shutdowns, “were policies supported by House Democrats and opposed by Reagan and Senate Republicans.” Just like Obamacare, in other words.
Had you told Tip O’Neill in the late 1980s that he was expected to take a back seat because the White House and the Senate were both run by Republicans, he rightly would have laughed in your face. And then he would have reminded you that he was the speaker of the House and that the House was constitutionally preeminent in matters fiscal and legislative. Are we, to borrow Sullivan’s own words, seriously to take this as evidence that Reagan was the victim who “played punctiliously by the constitutional rules” while Democrats in Congress decided that those “rules are for dummies and suckers”? I think not.
If we are so liberally to play with language, it is worth pointing out that the only political actor who has thus far succeeded in “nullifying” any part of Obamacare is the president himself. Over the past three years, Barack Obama has unilaterally and illegally delayed parts of his signature law — and a host of other laws, too — because he deemed them politically inconvenient or unworkable. This is illegal, an extreme “act of constitutional vandalism,” to borrow the favored style of the shutdown’s hysterics.
There is one branch, as it so happens, that can effectively change the law unilaterally. As James Madison explained in Federalist No. 58, one branch can try to effect existing law in a more brutal manner if necessary, armed as it is with “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” That branch is not the presidency — whose role is to faithfully execute the law — but Congress.
My suspicion is that, as much as anything else, “nullification” is a word that is used consciously and deliberately as a cudgel — especially at the moment, when we have a president who is black. Accusing someone in America of seeking to “nullify” a given power is rhetorically akin to sticking the label “defenders of states’ rights” onto advocates of robust federalism. The accusers do not simply intend to imply that their opponents’ actions are illegal or illegitimate; they mean to taint them with the racism brush — something that Sullivan does throughout his screed.
This may be deeply unfair, but it is politically smart. While actual nullification remains a fairly popular instinct on both the left and the right — conservatives tend to pledge to ignore new federal gun laws; progressives, to ignore federal drug laws — the loudest and best-known example of nullification in the historical record is from Alabama’s Democratic governor, George Wallace, who vowed to defy federal desegregation orders in the name of “segregation now, segregation tomorrow, segregation forever.” Wallace’s defiance was so vehement that Martin Luther King Jr., in his seminal “I Have a Dream” address, described the governor as “having his lips dripping with the words of interposition and nullification.” The association between nullification and racism has, alas, stuck.
William F. Buckley Jr. once answered a question about whether his support for salvaging items from the wreckage of the Titanic was akin to supporting “grave robbing” by answering, wryly, “No, because it isn’t robbing graves.” When Republicans who are exercising the constitutionally enumerated powers of the part of government they control are asked if they are engaging in “nullification,” they should have a similar answer ready: “Go and buy a dictionary — and a history book.” Words mean something. Let’s try and keep it that way.
— Charles C. W. Cooke is a staff writer at National Review.