Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.Details
Nullification, as an idea, is simple.
Legislation, as a process, is not.Details
This question just came in on our feedback forum, and I thought it was important enough to discuss that I’d share my answer here.
QUESTION: Is the principle of anti-commandeering synonymous with nullification
ANSWER: It depends on how you define the word “nullification”
Many believe that it is defined only as John Calhoun did in 1830’s South Carolina.
Anti-commandeering is not that process.
What it is, though, is a 100% legal process, backed up by years of Supreme Court precedent, which says that the feds cannot “commandeer” state resources to carry out a federal act or regulatory program. In other words, the states are free to decide if they will participate or not.
Recognizing that many, if not most, federal programs rely heavily on this kind of cooperation, by enacting anti-commandeering laws on various issues around the country, they can have the effect of a practical nullification – rendering federal acts “nearly impossible to enforce”
I think it is not surprising that the leading current commentaries supporting the President — including the four mentioned above — focus on modern needs or on practice long after ratification. The founding-era meaning is clear and straightforward. Cecere’s weak attempt to show otherwise actually confirms it.Details
There have been some top constitutional experts making comments about our legislative proposal to NullifyNSA. Here’s a balance – pro and con – of the most prominent of late.Details
The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.Details
while the article is most directly about Article VI and the ways federal interests should and should not trump state law, it is more broadly about how original meaning can be implemented in an area with significant non-originalist judicial precedents.Details