Kentucky and Virginia sparked a constitutional crisis in 1798 when they insisted that states have the right to nullify federal laws they find to be unconstitutional. The Supreme Court in 1809 finally decided against nullification, which since then has been rejected repeatedly. In the 20th century, for example, as southern states in defiance of Brown v. Board of Education attempted to avoid integration, the Supreme Court again ruled that states could not nullify federal laws.
Ever resilient, the nullification movement has found new life in the 21st century, as various interest groups have attempted to overturn federal laws at the state level. Most people either support nullification or oppose it, but the American Civil Liberties Union has taken an impressive stance on the issue. It supports and opposes the practice, depending on whether nullification happens to serve their agenda.
Last year, New Jersey State assemblywoman Alison McHose attempted to nullify Obamacare. Her bill would have made it a criminal offense in New Jersey to enforce the requirements of the Affordable Care Act. She insisted that New Jersey had the right to declare the law unconstitutional and invalid within its boundaries. In stepped Frank Askin, general counsel for the ACLU, who argued that
the state cannot nullify a federal law. New Jersey has a better chance of seceding from the Union than enforcing this bill. This bill is clearly unconstitutional, and any state employee who tried to enforce it could be sued. We have the Constitution of the United States of America that binds us all together.
McHose’s bill would later die in the New Jersey legislature. The ACLU carried on with its legal defense of Obamacare.
This year, however, the ACLU has decided that nullification — or at least something like it — is acceptable. The Virginia legislature recently passed state delegate Bob Marshall’s H.B. 1160, which prevents state employees or any member of the Virginia National Guard from “knowingly [aiding] an agency of the armed forces of the United States in the detention of any citizen pursuant to the National Defense Authorization Act.” The NDAA codifies the federal government’s ability to detain terrorists for questioning.
According to National Review’s Andrew C. McCarthy, “it’s a clear attempt to nullify the NDAA. Strictly speaking, [the Virginia bill] is not a full nullification. A full nullification would happen if a state concluded that a federal law was unconstitutional, the federal government was dependent on the state to enforce it, and the state declined.” And so Virginia is not “preventing the federal government [from executing] federal law in the state’s sovereign territory, nor is it threatening to obstruct the government from doing so. It is just saying: ‘We won’t lift a finger to help you.’”
But the bill still requires the state to refuse to cooperate in the execution of the NDAA, thereby interfering with the federal government’s war powers. Based on its previous position on nullification, the ACLU should have declared the law unconstitutional and fought against it. Instead, the ACLU of Virginia supported it:
The ACLU of Virginia and Delegate Bob Marshall may be on opposite sides on most issues. But we both know when we’re on the same side, and when we are we have no qualms about working with each other to accomplish our mutual goal. It’s simply a matter of a wise politician working with a wise advocacy group.
During the 2012 session, Delegate Marshall introduced H.B. 1160, which prohibits state and local entities from assisting the federal government when it indefinitely detains U.S. citizens under the National Defense Authorization Act in a manner that violates Virginia law. We agreed with the bill, energized our grassroots lobbyists to support it, and Governor McDonnell recently signed it into law.
This was a surprising response. “Bills like HB 1160 tend to be largely symbolic, but that does not reduce their effectiveness,” said Kent Willis, executive director of the ACLU of Virginia, attempting to explain the ACLU’s inconsistency. “As Virginia, other states, and localities pass these anti-NDAA measures, the message to Congress that the law is unwanted becomes clearer and more forceful. If there are constitutional questions about the law, they will arise in the implementation stage, and we’ll be keeping an eye on that.”
While Marshall, as he said in an interview with me, may not believe in “the Supremacy Power and all that bull—-,” the ACLU should know better. If nullification is allowed in any case, it creates a precedent that threatens to rob the federal government of its ability to enforce the basic rights that the Constitution provides. Daniel Webster’s response to nullification efforts in 1830 is no less applicable to their counterparts in the 21st century: “Liberty and Union, now and forever, one and inseparable!”
— Nathaniel Botwinick is an editorial intern at National Review.