The “Doctrine of Nullification” may be known only to American history buffs, but that could soon change, for Idaho is about to resurrect it and several other states — mostly in the West — appear poised to follow.
Put briefly, the Doctrine holds that states have the authority to declare a federal law unconstitutional and thus to “nullify” it within their borders.
I’ll grant that there have been times when nullification seemed like a good idea to me — such as during the military draft in the 1960s and various draconian federal drug laws — but the objection this time around is aimed at the federal Affordable Care Act passed last year. Specifically, the individual requirement to purchase health insurance is seen as an exercise of “federal tyranny.”
Article 6 of the federal constitution states that “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.”
However, who determines whether a federal law conforms to the federal constitution? We generally look to the Supreme Court for such decisions, but that role is not specified in the Constitution. And so, one argument goes, state governments are just as empowered to determine the constitutionality of a federal law.
The Doctrine has a long history dating back to 1799, when Thomas Jefferson (then the vice-president under John Adams) surreptitiously wrote the Kentucky Resolution in opposition to the Alien and Sedition Acts. which, among other things made it a federal crime to criticize the president.
It cropped up again in 1833 when South Carolina wanted to nullify a tariff which, it claimed, discriminated against agricultural interests in favor of manufacturers in other states. And in 1854, Wisconsin wanted to nullify the federal Fugitive Slave Act, which required citizens to assist in capturing and returning runaways.
And now the Doctrine of Nullification has returned. Aside from Idaho, the other states giving it consideration in relation to the Affordable Care Act are Montana, Oregon, Wyoming, Texas, Nebraska and Maine.
Essays in the Range blog are not written by High Country News. The authors are solely responsible for the content.
Ed Quillen is a freelance writer in Salida, Colorado
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