THE HUMBLE LIBERTARIAN

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Saturday, November 10, 2018

Donald Trump's Acting A.G. Said States Can Nullify Federal Laws They Find Unconstitutional


Before you get too excited– I should note he said this in 2013, while running in a Republican U.S. Senate primary in Iowa, in the context of saying the states should nullify "ObamaCare."

(Which I prefer to call The Unaffordable Care Act.)

He may just have been pro-nullification on a situational basis because he was anti-ObamaCare (because he was anti-Obama, and would quite possibly have found some rationalization for it if Romney had become president in 2008 and passed it).

He may not be actually, deeply pro-nullification and state sovereignty on a principled basis that he would consistently apply across the board. It nearly always serves me well to be skeptical of politicians and expect them to disappoint.

But it is pretty interesting, and at least a little encouraging to read that an acting U.S. Attorney General even mentioned nullification, and what's more– even said he was for it.

Here's what Matthew Whitaker said:

"As a principle, it has been turned down by the courts and our federal government has not recognized it. Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?

The federal government's done a very good job about tying goodies to our compliance with federal programs, whether it's the Department of Education, whether it's Obamacare with its generous Medicare and Medicaid dollars and the like. But do I believe in nullification? I think our founding fathers believed in nullification. There's no doubt about that."



In its article reporting Whitaker's statement, CNN got this legal expert marionette to say:

"Nullification as a serious, mainstream legal argument didn't survive the Civil War (or the constitutional amendments that followed). It's irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause of Article VI—which not only makes federal law supreme, but expressly binds state courts to apply it. For someone who holds those views to be the nation's chief law enforcement officer, even temporarily, is more than a little terrifying."

This law prof is entitled to his own opinion, and it may have some merit, but he's not giving the other side its due. This is not a terrifying idea. Certainly it's not more terrifying than the threat implicit in this law guy's reference to the Civil War. If your only argument is the federal government will burn your state to the ground if it doesn't comply, then instead of a reasonable legal argument, all you have is mere brute force tyranny.

Here's what the author of the Declaration of Independence and third president of the United States had to say about nullification in the Kentucky Resolves, which advocated nullification of the Alien and Sedition Acts signed by John Adams in 1798:


"1. Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

Any serious criticism of the several states' prerogative to nullify unconstitutional federal laws must contend with the substance of the legal arguments Jefferson makes in the Kentucky and Virginia resolutions, not just casually reference the threat of an invading army coming to rape and murder and burn your fields and forests and houses to the ground. Based on this alone I would rather deal with the U.S. attorney man over CNN's marionette any time.

But I still expect he'll disappoint me if he's nominated and confirmed to be Jeff Sessions' permanent replacement.

Video version of this post here.



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