On July 31, the Daily Show did a little piece ridiculing nullification. The sketch centered around a Second Amendment Preservation Act passed by the Kentucky Senate during the last legislative session. (The bill died in the House.) After they make the bill’s sponsor look foolish, they bring in a nullification opponent to make the principle itself look foolish. LaRue County Judge/Executive Tommy Turner serves that role. I should note that in Kentucky, a judge/executive serves as the chief executive of a county – essentially the mayor of the county. They are not judges, and the job requires no legal training.
The following is a letter I sent to Judge/Executive Turner
Dear Judge Executive Turner,
I saw your little spot on the Daily Show.
I admit it was mildly amusing. A total distortion of nullification, but amusing nonetheless.
I know it’s supposed to be comedy, but the piece was clearly intended to make a political point. Little does the Daily crew realize – the joke is on them.
Did you know that the “nullification” bill passed by the Kentucky Senate was absolutely constitutional – even according to Supreme Court opinion? The bill was a simple noncompliance bill that would have prohibited state cooperation with any federal attempts to enforce acts violating the Second Amendment. It made no provision for state interference with federal actions.
There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states (or their political subdivisions, local governments) to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.
In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each of these cases, the Supreme Court made is quite clear that in their opinion, the federal government cannot require the states to act, or even coerce them to act through a threat to lose funding.
Furthermore, the doctrine of nullification itself stands on solid constitutional ground. James Madison and Thomas Jefferson first formalized the principles. Madison actually gave us the blueprint for dealing with federal overreach in Federalist 46 – before the Constitution was even ratified.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
So you see, while the Daily show clearly intended to ridicule those of us who advance the principles of nullification, they actually serves as the clowns in this scenario, because they obviously have no idea what they are talking about.
For further reading, I highly recommend this article. http://tenthamendmentcenter.com/2013/03/24/nullification-for-lawyers/
It delves more into the legal ground nullification is built on.
To his credit, Judge/Executive Turner seems like the type of person interested in learning. He sent me a courteous thank you and expressed interest in reading Our Last Hope: Rediscovering the Lost Path to Liberty.
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