Keith Mack
The concept of nullification, which asserts that individual states can invalidate federal laws or judicial decisions they deem unconstitutional, has been a subject of controversy since its early inception in American history. While states cannot block federal authorities from enforcing their laws, state officials are not required to enforce federal laws that they deem unconstitutional. The power to declare federal laws unconstitutional ultimately lies with the federal courts, as established by Chief Justice John Marshall in Marbury v. Madison, and reaffirmed in cases such as United States v. and FERC v. Mississippi. The complex dynamics between federal and state laws continue to shape the legal landscape in the United States, with states occasionally challenging federal authority and the courts playing a pivotal role in interpreting and enforcing the Constitution.
Can States Disobey Federal Laws?
| Characteristics | Values |
|---|---|
| Can states nullify federal laws? | Yes, but only in certain cases. States can declare federal laws unconstitutional, but this declaration has no legal effect unless the courts agree. |
| Can states block federal authorities from enforcing a federal law? | No, unless a court has held that the law is unconstitutional. |
| Can individuals be exempt from federal prosecution if the state has legalized an activity or pronounced a federal law unconstitutional? | No, individuals can be prosecuted by the federal government. If convicted, individuals can attempt to vindicate their constitutional rights in court. |
| Can the federal government force states to enforce federal laws? | No, but the federal government can threaten to withhold federal funds to encourage states to comply. |
| Can the federal government commandeer state resources to enforce federal laws? | No, the federal government cannot commandeer state resources. |
| Can Congress mandate that states enact specific laws? | No, Congress cannot require states to enact specific laws, but it can encourage states to develop programs to address national issues. |
| Who has the power to declare federal laws unconstitutional? | The power to declare federal laws unconstitutional lies in the federal courts, not in the states. |
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What You'll Learn
Nullification and interposition
Nullification is a declaration by a state that a federal law is unconstitutional and therefore void and unenforceable within the state. The Kentucky Resolutions of 1798, written by Jefferson, asserted that the states formed the Constitution as a compact, delegating certain powers to the federal government while reserving all other powers for themselves. In 1834, Madison clarified that nullification of a federal law required collective action by multiple states, rather than a unilateral decision by a single state.
Interposition, as originally conceived by Madison, is similar to nullification in that it involves a state declaring a federal law to be unconstitutional. However, interposition does not result in the state refusing to enforce the law. Instead, the state communicates with other states, attempts to enlist their support, and takes joint action such as petitioning Congress to repeal the law or proposing constitutional amendments. Interposition is thus seen as a more moderate approach than nullification.
The Supreme Court has rejected attempts by states to nullify federal laws, asserting its final authority to interpret the Constitution and federal treaties. For example, in the case of United States v. Georgia, the Court held that Georgia's laws regulating Cherokee land were "void" and that "the laws of Georgia can have no force" on Cherokee land.
While nullification and interposition are based on the idea of checking federal power, critics argue that they can also enable state tyranny. For instance, if states could invalidate federal laws, Virginia's ban on interracial marriages and Texas's laws criminalizing gay sex might still be in effect.
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Supremacy Clause
The Supremacy Clause is among the Constitution's most significant structural provisions. It establishes that the Constitution, federal laws, and treaties made under the authority of the United States are the supreme law of the land. This clause, found in Article VI, asserts that these federal laws take priority over any conflicting rules of state law. The core message of the Supremacy Clause is that federal law preempts state law, either expressly or impliedly.
The Supremacy Clause was included in the Constitution to address problems with the Articles of Confederation, which lacked a provision declaring federal law superior to state law. During the Confederation era, federal statutes did not bind state courts unless state legislation was implemented. The Supremacy Clause was not a major point of contention at the Constitutional Convention, but it did generate controversy during the debates over the Constitution's ratification. However, advocates of federal supremacy prevailed, and the Constitution was ratified in 1788 with the inclusion of the Supremacy Clause.
The Supreme Court has relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court's early field-preemption decisions concluded that congressional action in certain fields could automatically displace all state laws in those areas. For example, in the late 1800s, the Supreme Court rejected Georgia's attempt to nullify federal treaties with the Cherokees, asserting that state laws regulating Cherokee land were "void" as they contradicted federal treaties and the Constitution. This case demonstrated the Court's final authority in interpreting the Constitution and federal treaties, rejecting Georgia's attempt at nullification.
The Supremacy Clause also has implications for judicial review, the idea that even duly enacted statutes do not provide rules for courts if they are deemed unconstitutional. The Supremacy Clause's reference to "the Laws of the United States which shall be made in Pursuance [of the Constitution]" supports this concept. Additionally, the Supremacy Clause establishes that treaties can directly influence American courts' rules of decision, a departure from traditional British rule, where treaties did not have domestic legal effect without implementing legislation.
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State sovereignty
The concept of state sovereignty in the United States refers to the idea that individual states possess a degree of autonomy and are not entirely subordinate to the federal government. This notion has been a subject of debate and contention throughout American history, with certain states challenging federal laws and asserting their sovereignty.
One of the earliest instances of states asserting their sovereignty and attempting to nullify federal laws was in 1798 during the Quasi-War with France. Thomas Jefferson, then Vice President, anonymously drafted the Kentucky Resolutions in response to the Alien and Sedition Acts passed by Congress and signed into law by President John Adams. The Alien Act empowered the president to deport aliens deemed a threat to national security, while the Sedition Act criminalized "false, scandalous and malicious" speech critical of the federal government. Jefferson's Resolutions declared these Acts unconstitutional and "altogether void and of no force" in Kentucky. He argued that the Constitution was a "compact" among the states, delegating specific powers to the federal government while reserving all other powers for the states themselves.
In 1800, the Virginia General Assembly passed Madison's Report, which acknowledged that states could declare federal laws unconstitutional. However, it clarified that such declarations would hold no legal weight unless the courts concurred. This report is often cited as evidence of a state's right to nullify federal laws.
The Supreme Court has played a pivotal role in interpreting the Constitution and settling disputes between state and federal laws. In the 1997 case of Printz v. United States, the Supreme Court ruled that the federal government could not compel state law enforcement authorities to conduct background checks, upholding the principles of state sovereignty. Similarly, in FERC v. Mississippi (1982), the Court observed that it had never explicitly sanctioned a federal command to the states to promulgate and enforce laws and regulations.
It is important to note that while states possess a degree of sovereignty and can challenge federal laws, there are limitations. States cannot impede federal authorities from enforcing laws, even if the state deems them unconstitutional. Additionally, states cannot block federal authorities from enforcing a federal law unless a court has ruled it unconstitutional. The Supreme Court has asserted final authority in interpreting the Constitution and federal treaties, as seen in its rejection of Georgia's attempt to nullify federal treaties with the Cherokees.
In conclusion, state sovereignty in the United States allows states to challenge and refuse to enforce certain federal laws, particularly when they conflict with state constitutions or infringe on reserved state powers. However, the Supreme Court and federal courts hold the ultimate authority in interpreting the Constitution and establishing a uniform rule of law across the nation.
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Federal tyranny
However, the history of the United States demonstrates that federalism is not a guarantee against tyranny. For example, during the Jim Crow era, the states' control over elections, education, and land-use zoning played a significant role in the tyranny against people of colour in many states. The federal government also contributed to racialised discrimination through Supreme Court decisions like Sanford v. Dred Scott (1857) and Plessy v. Ferguson (1896), as well as the racialised segregation mandated by the Federal Housing Administration.
The concept of nullification, where states can declare federal laws unconstitutional, has been proposed as a way to check federal tyranny. The Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison, asserted a state's right to nullify the Alien and Sedition Acts. They argued that the states must have the final word because the Constitution had not expressly established an ultimate authority on constitutional matters. However, Chief Justice John Marshall resolved this oversight in Marbury v. Madison (1803), stating that it is the duty of the judicial department to interpret the law. The Supreme Court further dealt with nullification in 1809 in the case of United States v., and during the Nullification Crisis of the 1830s, Madison denounced as unconstitutional the concept of nullification of federal law by a single state.
While nullification can be seen as a check against federal tyranny, it is important to recognise that states can also be tyrannical. For instance, if states could invalidate federal law, Virginia would have maintained its ban on interracial marriages, and Texas might still be jailing gay people for consensual sex. Therefore, while federalism and the division of powers can help reduce the risk of tyranny, it is not a foolproof solution.
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Sanctuary states
While states cannot disobey federal laws, they can nullify some federal laws, but not all. The power to declare federal laws unconstitutional lies in the federal courts, not in the states. However, states are not required to enforce federal laws or enact regulatory programs that Congress mandates.
Sanctuary jurisdictions are towns, cities, counties, and states with laws, ordinances, regulations, resolutions, policies, or practices that obstruct immigration enforcement and shield criminal aliens from Immigration and Customs Enforcement (ICE). Sanctuary policies restrict most forms of cooperation with federal immigration authorities. While jurisdictions are not compelled by federal law to participate in federal immigration enforcement activities, federal law prohibits them from actively obstructing the enforcement of federal law.
There are currently 11 states that have declared themselves "sanctuary states" through executive action or the passage of a law. These include California, Connecticut, Colorado, Illinois, Massachusetts, New Jersey, Oregon, Rhode Island, Utah, Vermont, and Washington. California, the most populous sanctuary state, became a sanctuary state after Governor Jerry Brown signed the California Values Act (also known as Senate Bill 54) in October 2017. The Nutmeg State became a sanctuary state in 2013 when its legislature passed the Trust Act, which was signed by Governor Dannel Malloy. Similarly, Illinois became a sanctuary state in 2017 when Governor Bruce Rauner signed the Illinois Trust Act. In 2019, Governor J.B. Pritzker signed three bills expanding the sanctuary law.
Some states have gone beyond simply not enacting laws regarding immigration enforcement and have actively provided unnecessary, sometimes illegal, and unconstitutional assistance to ICE. These states have passed laws punishing their localities for passing sanctuary policies and have undermined the impact of protective policies.
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Frequently asked questions
Yes and no. The federal government can't commandeer the resources of the states to enforce its laws. However, states may not block federal authorities from enforcing a federal law.
Yes, but only in certain cases. The power to declare federal laws unconstitutional lies in the federal courts, not in the states. However, states are not required to enforce federal laws and enact regulatory programs that Congress mandates.
Nullification is the constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. There have been three prominent attempts by states at nullification in American history.
No. However, more radical nullification proponents would disagree. They point to the Kentucky and Virginia Resolutions of 1798 and 1799, in which Thomas Jefferson and James Madison asserted a state’s right to nullify the Alien and Sedition Acts.
