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.
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:
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The point of states nullifying unconstitutional federal laws is that the Supreme Court is part of the federal government and authorizes clearly unconstitutional laws. They are the problem and the nine black robed lawyers have no way of enforcing their rulings.
Someone anonymous needs to be educated. The U.S. Supreme Court doesn’t “authorize” laws. Legislation becomes law upon passage by both Houses of Congress with or without the President’s signature provided it isn’t vetoed (Congress can override a veto by a 2/3 majority vote in both chambers). Any citizen or group of citizens may challenge the constitutionality of a law in the federal court system. After initial rulings in the district courts, and subsequent rulings in the appellate courts, the supreme court may or may not take up the case. If it declines, the appellate decisions stand. If it takes up the case, its ruling is the final arbiter.
In the U.S. system of justice, the federal courts have hierarchy over the state courts in constitutional matters and issues relating to federal law. That means the supreme court is the highest authority in interpreting the U.S. Constitution – like it or not. Furthermore, the supreme court is not tasked with enforcement of its rulings. The responsibility of enforcing the constitution and federal law rests with the Department of Justice.
Nullification is a grand delusion of anti-government fanatics which traces back to the slave-holding Antebellum South. Their arguments regarding the “constitutionality” of federal authority is beyond absurd, for it was the Constitution itself that established the federal government in 1787-1788. Before that, the fledgling American nation was governed under the Articles of Confederation where power was delegated to the states. It failed so badly that the Founding Fathers discarded it in a hurry.