Recently, I came across this piece from Heritage ,which makes many misleading assertions regarding “nullification”. On many issues Heritage is a “good guy.” Sadly this is not one of them. From their commentary, it appears that they cannot, under any circumstances, allow any cracks in the veneer of authority that D.C. has crafted.
I thought I would give a shot at a point by point refutation.
HERITAGE: ”Nullification Is Unconstitutional” The Nullification Temptation: In order to challenge the federal government’s unconstitutional actions, states are looking for options to reassert their legitimate role in the constitutional structure of federalism. Unfortunately, despite good intentions, some have been tempted to embrace nullification—the claim that an individual state legislature has the authority to veto federal laws.
RESPONSE: That is not strictly so, I will lay out what we at the Tenth Amendment Center consider to be “nullification”. If it did mean (literally) ” that an individual state legislature has the authority to veto federal laws,” then I suppose I would agree that nullification was a bad idea and illegal. That is not, however, and never has been, what nullification is. The most assertive version of nullification is a state law that makes enforcement of an unconstitutional federal act illegal within the state, and sets penalties for any official who attempts to do so. A veto, by comparison, would literally make the law null and void in every state in the union, and even make it cease to exist. Such a view would be empowering one state to rule the country. See the difference?
HERITAGE: Supreme Law of the Land: At the center of our system of government is the United States Constitution: All federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, the federal government, or an individual state legislature, for that matter.