The House may have passed a bill that would repeal Obamacare, but a Democratic majority in the Senate and a Democratic president who has hung his legacy on the survival of the new law remain formidable obstacles. That is why some conservatives have begun looking for a “nuclear option” to end Obamacare, in the form of state nullification. Libertarian Thomas E. Woods wowed CPAC attendees last February with a passionate call for nullification, declaring that “we need the institutional ability to say no to the federal government.” Let the states nullify “a law they believe violates the Constitution” and “the federal government may well have to back down.” A year later, ten state legislatures are debating how to nullify Obamacare, and four others have considered the idea off and on. The most recent is Idaho, where Gov. Clement Otter said in his January 10 state-of-the-state address that he is in favor of “actively exploring all our options — including nullification.”
Unfortunately, like other nuclear options, nullification is a dangerous weapon to brandish. Its danger lies in how easily it could destroy not just Obamacare, but the entire Constitution.
Nullification has been tested before — and found wanting. At the time of the Constitution’s ratification, several of the states tried to add reversion declarations that provided some measure of restraint on the operation of unpopular federal laws. Thomas Jefferson and James Madison both wrote legislative resolutions in 1798 threatening state nullification of the Alien and Sedition Acts. In 1832, a South Carolina state convention adopted a nullification ordinance to prevent the collection of “the tariff of abominations,” and in the 1850s the Wisconsin Supreme Court tried to nullify the Fugitive Slave Law by ordering the release of Sherman Booth, an abolitionist who had helped a runaway slave escape to Canada, from federal custody.
At no point, however, did nullification prevail. The state ratifying conventions in 1788 could issue as many reversion declarations as they pleased, but as Robert Bork once wrote, it is the act of ratifying the Constitution, not of issuing nullification declarations, that enjoys legal standing. Neither Kentucky nor Virginia actually nullified the Alien and Sedition Acts, and Madison himself hastened to add in 1800 that the nullification he had had in mind was more an “expression of opinion” about the constitutionality of federal acts than a declaration of their invalidity. South Carolina’s nullification of the tariff earned a resounding rebuke from Pres. Andrew Jackson, himself no lover of centralized government. “I consider . . . the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution,” and “inconsistent with every principle on which it was founded,” Jackson thundered. When federal marshals arrested Sherman Booth and refused to release him to Wisconsin state custody, he had to wait for a presidential pardon before he could walk free in 1860.
The Constitution is nicely specific about the relationship between federal and state power: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So it is worth asking just what it is that modern nullificationists don’t understand about supreme. The wonder only deepens when we remember that the states are expressly forbidden by the Constitution to exercise the greater prerogatives of sovereignty: “No State shall enter into any Treaty, Alliance, or Confederation . . . coin Money; emit Bills of Credit . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility . . . lay any Imposts or Duties on Imports or Exports . . . keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War.” If the states lack these powers under the Constitution, how can they retain the much greater power to nullify national laws?