Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism

Article excerpt

Recent state statutes and constitutional amendments challenging federal health care legislation and other federal laws have attracted significant attention, both from critics who view them as nullification acts that are inconsistent with the Supremacy Clause and from some supporters who have been equally willing to embrace the nullification label for the purpose of defending such legislation. Upon closer examination, it becomes possible to view these measures as falling short of invoking the clearly repudiated doctrine of nullification and as capable of contributing under certain conditions to safeguarding federalism principles. An analysis of these recent assertions of state sovereignty--whether regarding health care, guns, drivers' licenses, or medical marijuana--can contribute to a better understanding of the range of opportunities for states to wield influence in the U.S. federal system by showing that state statutes challenging federal law can play a role, alongside of, and occasionally in place of, traditional mechanisms by which states can advance their interests in the national political process.

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States have historically advanced their interests in the United States federal system through various mechanisms whose legitimacy and effectiveness are clearly established. (1) State officials have engaged in intergovernmental lobbying, individually and through organizations such as the National Governors Association, to frequent effect in shaping congressional legislation (2) and securing relief from administrative officials. (3) State officials have also filed suit against federal laws seen as exceeding the legitimate reach of congressional power with occasional success. (4)

In recent years, states have gone beyond these longstanding mechanisms of state influence by enacting measures in direct opposition to federal statutes, as typified by the enactment of state statutes and constitutional amendments challenging the individual insurance mandate provision of the recently enacted federal health care legislation. (5) These state health freedom measures, along with firearms freedom statutes passed in various states, have attracted significant scholarly attention. (6)

Many scholars have decried these state measures as nullification acts that are inconsistent with the Supremacy Clause of the United States Constitution and have no place or effect in the United States federal system. Sean Wilentz may be more forceful than most scholars in his denunciation of these measures--he refers to them as the product of "mendacity"--but, in general, he can be seen as expressing the dominant understanding. (7) As he argues, recent assertions of state sovereignty in regard to federal health care and gun laws are embodiments of the "discredited ideas" of "nullification and interposition" of the sort invoked by South Carolina in the 1830's and other southern states in the 1950's and with the effect of "subvert[ing] the constitutional pillars of American nationhood." (8)

Meanwhile, some supporters have been equally willing to embrace the nullification label--not only regarding the recent health and gun measures, but also regarding challenges to federal driver's license and drug laws--for the purpose of defending them as modern invocations of the doctrine of nullification embodied by Thomas Jefferson's Kentucky Resolutions of 1798. Thus, Thomas E. Woods Jr., in his recent book, Nullification: How to Resist Federal Tyranny in the 21st Century, argues that "[t]wo dozen states nullified the REAL ID Act of 2005," and "[o]ne of the most successful examples of modern-day nullification involves the medicinal use of marijuana," wherein "states are openly resisting the federal government's policy." (9) He writes that "[n]ullification is being contemplated in many other areas of American life as well--and not just in health care," including passage of "Firearms Freedom Act[s]." (10) Woods concludes that "[t]his is the spirit in which the Jeffersonian remedy of state interposition or nullification is once again being pursued. …