A lot of lawyers are deeply confused about nullification. That’s because they are fixated on how things play out in court. But when it comes to nullification, it doesn’t really matter.
A lawyer commented on a recent article about the Tenth Amendment, sovereignty and resistance, arguing that the 10th is “hollow” because the federal courts hold all the power.
“I am a lawyer. The Tenth Amendment is hollow. Without an amendment making the Legislature of each state the court of last resort as to federal powers within its territorial jurisdiction, the powers reserved by the Tenth Amendment are meaningless. Yes, we can ‘nullify,’ but if a federal court has power to decide the validity of the nullifying law or act, then it is an empty power, completely meaningless.”
This is typical lawyer-think. But it completely misses the reality of nullification.
Simply put, at this point, it doesn’t really matter what the courts think.
And in fact, the Supreme Court has already set the stage for successful nullification.
James Madison gave us the nullification blueprint in Federalist #46 — refuse to cooperate with officers of the union. This strategy works because the federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
The federal government can’t force states to enforce federal law or implement federal programs. This is cemented in federal jurisprudence by the anti-commandeering doctrine. So, it doesn’t matter what federal courts say about the constitutionality of any federal action. States and localities don’t have to cooperate.
Federal marijuana prohibition is a perfect example. In Gonzales v. Raich (2004), the Supreme Court held that the federal government has the authority to regulate six marijuana plants in a person’s backyard. But that hasn’t stopped 37 states from legalizing marijuana in some fashion. When states stop enforcing cannabis laws, the federal government doesn’t have the personnel or resources to maintain prohibition within that state.
So they don’t.
This is nullification in practice and effect. And it doesn’t matter what any federal court says about marijuana laws.
Lawyer-think focuses on how each case will play out in court. But it misses the big picture. The Tenth Amendment is not hollow. Nullification is happening every day.