Nullification, Now Coming to the Supreme Court?
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.
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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. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.
Hewitt seemed a little taken aback: Was Huckabee counseling that county clerks simply ignore Supreme Court rulings and refuse to issue marriage licenses to same-sex couples?
Well, the point is states would be in a position that their legislatures would have to go into session. They would have to create legislation that the governor would sign. If they don’t, then there is not same sex marriage in that state. Now if the federal courts say well, you’re going to have to do it, well, then you have a confrontation. At that point, somebody has to decide is the Court right? If it is, then the legislation will be passed. It’s not unlike we’ve seen other legislation.
That's not an entirely novel idea, as Huckabee, a former governor of Arkansas, should know. In 1957, the state believed it could block the Little Rock School Board from adhering to the Supreme Court's ruling in Brown v. Board of Education.* President Eisenhower disagreed, and dispatched troops to show Governor Orval Faubus how wrong he was. Faubus is not an historical model most contemporary politicians would be willing to follow.
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Huckabee's legal analysis seems off, too. What happens when a court rules against such a marriage law is that a specific provision—a clause that defines marriage as involving one man and one woman, for instance—is defined as unconstitutional. That doesn't invalidate the entirety of a state's marriage laws, so the rest stand and there's no need for the legislature or governor to act. By analogy, Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited. Presumably, a state could avoid having to sanction gay marriages by simply eliminating civil marriage altogether. That's been suggested in Oklahoma, for example, but no state has actually done so. (Thanks to my colleague Garrett Epps for discussing these questions with me.)
Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited.
What unites all of these threads—nullifying Supreme Court rulings, Congress self-nullifying, and Nullification Classic, at the state level—is a remarkable backlash against the federal government, not on specific issues but per se: as a unified body with national governing authority. As Americans become more geographically sorted along ideological lines, states seem to be drifting apart in many ways. More states have single-party control than any time in recent memory, and that means increasingly divergent state laws. Red states pass more stringent abortion regulations, blue states pass more stringent gun controls, greener states pass less stringent marijuana laws. That makes (at least a bare majority of) the people in those states happy.
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The idea that state governments or for that matter the Congress can go their own way by ignoring duly passed laws and duly decided Court rulings seems like a less salubrious development. In fact, it's one of those slippery slopes so feared by gay-marriage opponents. Huckabee wants conservative states that oppose gay marriage to be able to keep opposing it, but he isn't suggesting dissolving the federal government wholesale. He still wants states to generally be bound by national laws.
But if some states can pick and choose laws, others will surely do the same—and in such a polarized national landscape, they'll start picking and choosing increasingly contradictory options. Liberals states will start refusing to enforce laws they don't like. (This happened with the Fugitive Slave Act, in fact; Wisconsin ruled the law unconstitutional; southerners who otherwise championed states' rights objected; and the Supreme Court overruled it.) It's a ticket to dissolving the union, all in the name of preventing same-sex unions.
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* This post originally stated that the board tried to block integration. We regret the error.
This article was originally published at http://www.theatlantic.com/politics/archive/2015/01/nullification-now-coming-to-the-supreme-court/384704/?UTM_SOURCE=yahoo
