The Corner

Null and Void

Reihan Salam has already explained why Joni Ernst’s views on the minimum wage do not place her on the far-right fringe, as Slate’s Jamelle Bouie would have it. Bouie also writes that Ernst, the Republican nominee for Senate in Iowa, has “expressed the belief that states could nullify federal laws.” Has she? Let’s follow the links.

Bouie’s source is a July Huffington Post article by Igor Bobic claiming that Ernst “appears to have been a proponent of nullification for years.” Bobic links in turn to a Daily Beast story that quotes her in a primary debate.

You know we have talked about this at the state legislature before, nullification. But, bottom line is, as U.S. Senator why should we be passing laws that the states are considering nullifying? Bottom line: Our legislators at the federal level should not be passing those laws. We’re right . . . we’ve gone 200-plus years of federal legislators going against the Tenth Amendment’s states’ rights. We are way overstepping bounds as federal legislators. So, bottom line, no we should not be passing laws as federal legislators—as senators or congressman—that the states would even consider nullifying. Bottom line.

So, in short, she is saying that the federal government should not pass laws that so overstep its bounds that people are moved to talk about nullifying them. That’s not the same thing as saying that states can nullify federal laws, or that they should. It’s not a denial of the need to obey the supremacy clause of the Constitution. Nor does what she said strike me as obviously incorrect. None of this stopped Ben Jacobs at the Daily Beast from providing this gloss on her remarks: “In embracing the concept of nullification, Ernst harkens back to a discredited theory that the Constitution is a compact and states are free to void federal laws that they dislike.” Nor did it stop the Beast’s editors from supplying a false headline: “Exclusive: GOP Senate Candidate Caught Saying States Can Nullify Laws.”

Jacobs notes that Ernst also co-sponsored a resolution in the Iowa legislature expressing the opinion that many federal mandates violate the Tenth Amendment, claiming all the powers that the amendment reserves to states, and demanding that the federal government stop enacting such mandates. It is not the finest piece of constitutionalist legislation I can imagine; It includes declaratory language about the federal government being the mere “agent” and creature of the state governments that I think is badly mistaken. But it doesn’t claim or attempt to exercise the power to nullify, and Jacobs concedes as much (“Ernst, a first-term state senator, has never explicitly supported pro-nullification legislation in her time in the Iowa state senate”).

That’s it for Jacobs’s evidence of Ernst’s pro-nullification tendencies. Back to Bobic’s HuffPo article. He writes that “Ernst co-sponsored another resolution, flagged to HuffPost by a Democratic source, that urged the ‘nullification’ of Environmental Protection Agency rules ‘relating to national emissions standards for hazardous air pollutants for reciprocating internal combustion engines.’” Now Ernst’s critics are just getting hung up over diction. The resolution just makes a case against these regulations — they’re too expensive — and then urges the EPA to “rescind” them and “Iowa’s Congressional delegation . . . to take action to nullify” them. There’s no claim that the state legislature can itself nullify federal regulations. It’s asking the federal government to do it. There’s nothing improper about that.

Bobic’s last piece of evidence: “Ernst followed up in February 2013 by co-sponsoring a joint resolution that expressed ‘the Iowa General Assembly’s refusal to recognize or support any statutes, presidential directives, or other regulations and proclamations which conflict with the Second Amendment of the Constitution of the United States and which are expressly preempted by the rulings of the United States Supreme Court.’” The operative language of the resolution seems to me completely unobjectionable: It says that the Iowa legislature “will not act to enforce” federal statutes, etc., that conflict with the Constitution and the Supreme Court’s reading of it. The federal government doesn’t claim the authority to force state legislatures to do much of anything, so it’s not clear to me why this resolution would be thought either necessary or dangerous. The use of “and” makes it even less so: Would HuffPo, the Daily Beast, and Slate like it better if the legislature announced its intention to defy Supreme Court rulings?

Maybe Ernst has said something that really does assert a state right to nullify federal laws. Maybe she’ll say something to that effect tomorrow. The evidence that these journalists present, however, doesn’t come close to showing that she has.


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