Nullification, Now Coming to the Supreme Court?

The Atlantic ^ | January 21, 2015 | DAVID A. GRAHAM

[reaganaut1]

When the Tea Party wave arrived in 2010, it swept away much of the Republican Party's existing structure, and instituted a more populist approach. But as waves tend to do, it left some even older debris in its wake. "Nullification," the theory that states can invalidate federal laws that they deem unconstitutional, had its heyday in the slavery debate that preceded the Civil War, but it has found new currency since 2010.

The theory has never been validated by a federal court, yet some Republican officeholders have suggested states can nullify laws, including Senator Joni Ernst, who gave the GOP rebuttal to the State of the Union. Missouri legislators passed a bill that would have nullified all federal gun laws and prohibited their enforcement. My colleague James Fallows has described efforts by Republicans in Congress to block duly passed laws—refusing to confirm any director of an agency established by an act of Congress, for example—as a new form of nullification.

Now Mike Huckabee seems to be opening up a new front. The Supreme Court last week agreed to hear a case on whether same-sex-marriage bans are unconstitutional. There's no such thing as a sure bet with the Court, but many watchers on both sides of the issue believe the justices will strike down the bans. Some conservatives seem resigned to the fact that the fight is lost; not Huckabee. Here's what he told radio host Hugh Hewitt Tuesday:

One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one.

[StonyBurk]

T’anks I recall reading somewhere that James wilson as a Judge had to be reminded -often-by his peers that Judges were to say what the law is —not what it ought be.Those were the days when America was at its’ best.

[Sola Veritas]

“One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one.” Mike Huckabee

This is why, as a social/moral conservative, I am currently backing Mike Huckabee. He is a real social/moral conservative, and won’t be backed down. Is he as fiscally conservative (and other issues) as many on this forum demand...probably not. However, to me, a person that has a PRIMARY concern is social/moral issues, he currently is the best in the running. BTW - I don’t care if libertarians (libertines) on this forum accuse him of being a “nanny-stater.”

[DoodleDawg]

Huckabee's legal analysis seems off, too.

Surprise, surprise.

[Still Thinking]

Keep in mind that a federal court will probably never grant power back to the states since the concept of incorporation became prevalent. And hey, why give power back when you can use it as a huge baseball bat to beat the peasantry over the head at every turn?

.....which is only relevant if we are to accept that the rulings of a federal court are valid in cases in which the limitations of federal powers are the issue. We need to stop thinking that. They won't let you sit on a jury if you so much as KNOW any of the parties, let alone work for them.

[itsahoot]

Based on nothing more than his personal politics Obama insists he has absolute authority. This does not reflect law or constitution.

It does however reflect reality.

[DeoVindiceSicSemperTyrannis]

Exactly! Since the Federal government is not party to the compact (being created by it) it has no right to judge the constitutionality of its actions. This is a far cry from the way things are run today, where the Federal government is seen by many as the only one with the real right to do so. Things have been turned on their heads. The Founding Fathers wouldn’t like it.

[BuckeyeTexan]

As Judge Napolitano likes to say, nullification is inherently constitutional because the states formed the federal government not the other way around.

The federal judiciary cannot grant power it does not have. The state legislatures and the people deserve exactly what they get.

The slow march to death will not stop until we decide that the possibility of death is preferable to the slow march.

[BuckeyeTexan]

State nullification of unconstitutional federal acts is simply the Tenth Amendment in action. It's time.

It's past time.

[greeneyes]

Thanks for the ping. Liberal states nullify Federal law with no consequences. For example, sanctuary cities.

[stylin_geek]

It used to be that Congress would ask itself if a proposed law was Constitutional.

Now, Congress passes laws and lets the Supreme Court decide.

Couple that with laws only being enforced on those without any pull (David Gregory, John Corzine are two prominent examples) and you wind up with the rule of men, not law. Also known as tyranny.

Anyone who thinks we have anything remotely resembling the rule of law in this country is delusional.

[Bigun]

Liberal states nullify Federal law with no consequences. For example, sanctuary cities.

An EXCELLENT point!

[greeneyes]

Yep, and I am getting pretty sick of being told we have to obey unconstitutional laws, because they are Federal, when the libs do as they jolly well please.