FOR THOSE opposed to perceived federal overreach in the enactment of health care reform, two primary options present themselves: political change and legal challenges. The first option came to fruition in part when Republicans took control of the House earlier this year, although the prospects of repealing the health care bill are currently dim because of Democratic control in the Senate. The second option - state challenges to the constitutionality of the bill - probably will conclude with a Supreme Court ruling on the issue.
There is a third option available, however, in addition to these two more traditional approaches. Despite its potency, it has received scant attention thus far. Nullification, in which a state government makes an independent judgment of a federal program's unconstitutionality and consequently refuses to acquiesce in its implementation, offers a powerful stopgap measure to stem federal usurpation.
The right of nullification has been asserted during various periods of strife throughout American history. It made its first appearance in the young republic following the passage of the Alien and Sedition Acts in 1798, which outlawed criticism of the President or members of Congress. James Madison and Thomas Jefferson responded with the Virginia and Kentucky Resolutions, which stated the duty and rights of states to "interpose" to arrest the pernicious effects of unconstitutional federal programs.
The powers of the federal government are explicitly enumerated in the Constitution, with the majority listed in Article I, Section 8. The Tenth Amendment states "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Virginia and Kentucky Resolutions were premised on this specific allocation of powers; thus, the Kentucky Resolution provided in part "that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force."
Nullification was employed frequently throughout the early 19th century in response to events ranging from the embargo of 1807 to the federal tariff of 1828. It was asserted especially vigorously, however, by Northern abolitionists in response to the Fugitive Slave Act, which required citizens to aid in the arrest of escaped slaves and denied those fugitives the right to a jury trial. In Wisconsin, when federal marshals captured a runaway slave, the state Supreme Court declared the law unconstitutional. When the federal Supreme Court demanded that the state turn the fugitive over to federal agents, the state Supreme Court refused.
Despite its successful invocation throughout American history, nullification today is considered a discredited political tool that was buried by the North's victory in the Civil War. This dismissal of nullification's constitutional legitimacy is due in large part to the widespread assumption that the Supreme Court is the sole and final arbiter of a law's constitutionality.
This idea, however, cannot be derived from the Constitution itself. Nothing in the Constitution grants to the Supreme Court the exclusive authority to determine an act's constitutionality. In fact, Article VI of the Constitution disperses the duty of constitutional interpretation, requiring that all members of Congress, members of state legislatures and executive and judicial agents "be bound by Oath or Affirmation, to support this Constitution." Thus, like Supreme Court justices, state legislators are prohibited by oath from giving effect to unconstitutional laws.
Requiring each branch of government to make an independent assessment of a law's constitutionality helps preserve a proper balance of power. If the Supreme Court is the sole arbiter of the constitutional limits on the federal government, then in effect the federal government is the sole judge of its own limits. As Kentucky's governor asked in 1825, "When the general government encroaches upon the rights of the State, is it a safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not?"
In this light, nullification is an act of self-defense on the part of a state. When the national government usurps powers beyond those specifically delegated to it, it necessarily intrudes, per the Tenth Amendment, on states' rights. The states - as the original contracting parties in the formation of the Constitution - have the right to defend their sovereignty and compel the federal government to remain within its constitutionally defined limits.
Fortunately, nullification has not been totally discarded. Medical marijuana legislation provides a salient modern example of the power of state nullification. Marijuana possession, under the federal Controlled Substances Act, is prohibited. State medical marijuana legislation is in direct contravention of federal prohibition and also runs counter to the Act's declaration that marijuana has no accepted medical use. Federal agents, however, have desisted from enforcing the prohibition of medical marijuana in response to nullification.
Several states already have considered passing legislation to nullify the health care reform bill. Other states that have joined in the legal challenge to the bill should give consideration to nullification as an alternative remedy or, in the case of an adverse Supreme Court ruling, an option of last resort.
Austin Raynor's column appears Thursdays in The Cavalier Daily. He can be reached at a.raynor@cavalierdaily.com.
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