This week, Tennessee became the 25th state to join a lawsuit against the president’s executive amnesty order. The lawsuit may work, but there’s another, more direct, and considerably more interesting redress against executive overreach. Proposed in 1798 by Thomas Jefferson and James Madison.
In 1798, Congress passed the Alien and Sedition Acts, which were signed into law by President John Adams. The A&S Acts comprised four bills that increased the federal government’s power to shut up dissenters; most noxious was a provision that permitted the prosecution of anyone who said anything about the government that the government considered “seditious.” Fourteen of the dominant Federalist party’s political enemies were arrested and imprisoned.
John Adams has — to date — been our only Federalist president. Prior to the presidential election of 1804, votes were cast only for president; each elector in the Electoral College cast two presidential votes, and whoever came in second became the vice president. In 1798, Federalist John Adams’s VP was Democratic-Republican Thomas Jefferson — and Thomas Jefferson hated the Alien and Sedition Acts. So did future president James Madison.
Like all VPs, Vice President Jefferson had approximately no power. And James Madison wasn’t even vice president. So, like all great dissenters, they grabbed their pens and — anonymously — wrote the Kentucky and Virginia resolutions. The K&V resolutions laid out what would come to be known as the nullification doctrine.
The nullification doctrine posits that, as the federal government is the product of the Constitution, and the Constitution is a compact of the states, it’s the states that have the final say on any law’s constitutionality. If a state determines that a law exceeds the terms of the compact to which it agreed, it has the right to nullify that law within its own borders.
Jefferson and Madison’s idea was for states to declare the Alien and Sedition Acts null and void. Instead of joining a lawsuit against the executive amnesty, those 25 states could simply deem the executive amnesty null and void, and refuse to recognize illegal aliens’ work permits or issue them driver’s licenses.
Why, you wonder, would that be better than filing a lawsuit? In a certain sense, it wouldn’t — because winning that suit would strike down Mr. Obama’s order in all 50 states. Which is not an unlikely outcome, given the order’s extremely shaky legal footing. However —
The judiciary has consistently ruled against the nullification doctrine, asserting its unique, judicial right to declare laws unconstitutional. But this executive order isn’t a law. And given its extremely shaky legal footing, it isn’t difficult to imagine a federal bench recognizing the states’ right to disregard federal orders that don’t clearly have the force of law. And that would be a tremendous — tremendous — blow against the executive’s assumption of legislative powers.
But in the shorter, directer term: It would force the Obama administration to go on offense, suing the states to enforce a law that isn’t a law. And I don’t think that case can be made.
Power to the states; power to the people. Huzzah. Write your governor; call your attorney general.
— Josh Gelernter writes weekly for NRO and is a regular contributor to The Weekly Standard.