Arguments for and against nullification -- Idaho State Constitution needs new amendment

I totally agree with Tom Woods' logicical argument and historical proofs with regard to original intent of the Constitution with regard to the compact theory of government, and that the individual states should have the final say on whether or not a federal law is Constitutional.  I believe that any State can ultimately nullify a federal law.

Some states, like Idaho, came into the Union after the War to Prevent Southern Independence.  The Idaho constitution was written in 1890.  

Despite my belief in the legitimacy of the concept of nullification,  I believe that States (like Idaho) that built in clauses of submission to Federal law without retaining the right to nullify would have to [go through the formal process to] amend their constitutions in order to proceed with nullification of a Federal law.

The letter from the Deputy Atty Gen. of Idaho holds some water;  his general conclusions stating that no state can nullify federal laws is wrong, however.  

Here is the gist of nullification in a nutshell:  

The sovereign people consented to be governed within the framework of States; 

The states formed a compact under the consitution to act in each other's collective interest;  

The federal government was to have limited specific powers and act as the agent for the states;

Each individual State held its own Convention to decide whether or not to ratify the Federal Constitution.
 

Only 9 states (Article VII) needed to ratify to essentially create a new entity out of the ashes of the United States created by the Articles of Confederation.  This is proof of State Sovereignty, as each state could choose not to ratify and stay independent.

Any States subsequently joining the Union would be adopting the Constitution and joining the compact voluntarily as equal entities.
 

The federal government was not a party to it's creation.

How can an element (i.e. the Judicial branch) of the entity created by the Constitution be the final arbiter of its own power?  

Only the parties to the compact (legal contract between equal entities, the states) can decide if their agent, the Federal government, has exceeded it's authority according to the limits imposed on it by the states.

If the state decides the Federal government has passed an unconstitutional law, it may decide to not enforce (to nullify) it within it's borders, imposing state authority (that is, force) between federal law enforcement (that is, force) and that State's citizens. 

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January 21,2011

The Honorable William Killen

Idaho State Representative

VIA HAND DELIVERY

STATE OF IDAHO

OFFICE OF THE ATTORNEY GENERAL

LAWRENCE G. WASDEN

Re: State Nullification of Federal Law - Our File No. 11-35557

Dear Representative Killen:

This letter is in response to your recent inquiry regarding the theory of State nullification

of federal law. Nullification generally is considered to take one of two forms. The first

is where a State acts within the system, whether through a court challenge, or through

concentrated series of efforts designed to repeal or amend offending legislative

provisions. The second form is most simply described as outright defiance of the law; in

other words, a State simply would ignore a federal provision, or a decision of a federal

court.

Nullification, If Meant As A Term Through Which Offending Legislation or

Judicial Decisions Are Overturned By Working Within The Existent Constitutional

And Legal Framework, Is Permissible And Encouraged By Our System of Checks

and Balances.

Idaho has historically participated in a number of these efforts including the

current challenge to the Healthcare Reform Law, as well as various resolutions addressed

to the Federal Government with respect to the state sovereignty and specific federal

legislative enactments. (See HeR 64, 44,and SJM 106 (2010)). These examples reflect

how a State can work within the constitutionally designed system to overturn or amend a

provision that offends a State's notion of sovereignty and federal overreaching.

Nullification As Defiance Of Federal Law Or Enactment Is Inconsistent With

A State Officer's Duty To Act In Conformity With The Federal And State

Constitutions.

Nullification is generally the argument that States have the ability to determine

the constitutionality of a federal enactment, and if a State finds the enactment

unconstitutional it can ignore or otherwise refuse to adhere to the federal requirements.

The basis for this argument is that the States came together to create the federal

government, and therefore the States retain the ultimate discretion as to the reach of

federal authority.! The adoption of these Resolutions in some respects represents the

apex of the ongoing argument between Alexander Hamilton and Thomas Jefferson over

the scope and influence of the fledgling federal government.2

These arguments arose cyclically throughout the Nation's early history, reaching

a virtual breaking point in 1828-1833 in what was referred to as the "Nullification

Crisis." President Andrew Jackson expressly rejected the theory of nullification as

incompatible with the existence of the Union and destructive to the very purpose of the

the Constitution.3 Southern State nullification advocates nevertheless continued to press

their cause, and their arguments formed a central justification for the Civil War.

The Legal Difficulty Of Idaho's Nullification Claim.

As an historical matter, many of the original States came into existence first as

English colonies and then as sovereign parties to the Articles of Confederation. Idaho's

road to state status followed a much different path.

Virtually all land within Idaho is the result of the United States making a claim to

the land, which was disputed by the British until the adoption of several treaties leading

ultimately to the creation of the Oregon Territory.4 Congress then created the Territory

of Idaho and, ultimately, the State of Idaho. Once Idaho was admitted as a StateS it

acquired all of the privileges and immunities held by each of the other States, but as

reflected above, the right of nullification, the right of secession, and the compact theory

had all been rejected by the United States by the time of statehood.

The framers of the Idaho Constitution were acutely aware of that fact. Article I, §

3 of our Constitution states:

1 See Kentucky Resolutions, Thomas Jefferson, (November 16, 1798 & December 3, 1799) and Virginia

Resolution, James Madison, (December 24, 1709).

2 Hamilton actually suggested sending the Army into Virginia as a pretext-thus even the earliest

arguments for nullification were viewed as latent arguments for civil war. See also Jonathon Elliot,

"Answers of the Several State Legislatures: "State of New Hampshire" Debates in the Several State

Conventions on the Adoption of the Federal Constitution, pp. 538-539. (1907).

3 Jackson also expressly rejected the right to secede, noting that the Constitution forms a government, not a

league of States. President Jackson's Proclamation Regarding Nullification, December 10, 1832.

4 Joint British and United States Claim was provided for in Treaty of 1818. The Oregon Treaty (1846)

established the boundary between United States claims and British Claims at the 49th Parallel. The territory

of Oregon was created on August 14, 1848. The territory ofIdaho was created on March 4,1863 (12 Stat.

L. 808, ch. 117).

5 Reviewing the Idaho Admission Bill, § 19 specifically applies the laws of the United States. See 26

Stat.L. 215, ch. 656; am 1998, P.L. 105-296.

State inseparable part of Union.-The State of Idaho is an inseparable part of

the American Union, and the Constitution of the United States is the supreme law

of the land.

The framers therefore expressly recognized Idaho's status as a part of the United States

and the supremacy of the United States Constitution. Consistent with this recognition,

every legislator is required to affirm "that I will support the constitution of the United

States and the constitution of the State of Idaho.,,6 Legislators and other state officials, in

other words, pledge to carry out their duties in a fashion that directly conflicts with the

second form of the nullification theory.

The alpha and omega of the nullification theory, in sum, rest upon rejecting the

principle that the United States Constitution as the supreme law of the land.7 The theory

runs contrary to the very purpose of the federal constitution and Idaho's express

constitutional acknowledgment in Article I, § 3 of that supremacy.

Courts Have Expressly Rejected Nullification

Our history is replete with federal enactments that were unpopular in one State or

another, or even within regions. Taking the logic of the nullification theory to its natural

extension, federal law would become a patchwork of regulation depending upon which

States chose to comply. It is hardly surprising, given this specter, that no court has ever

upheld a State effort to nullify a federal law.

The most instructive case on nullification is likely Cooper v. Aaron8 This case

arose out of a belief by the State of Arkansas that it was not bound to follow the Supreme

Court's decision in Brown v. Board of Education. 9 Arkansas, through its governor and

legislature, claimed that there is no duty on the part of state official to obey federal court

orders based upon the Court's interpretation of the federal constitution. lO The governor

and the legislature, in practical effect, were advancing the theory that the States were the

ultimate arbiters of the constitutionality of federal enactments and decisions.

The Court expressly rejected this argument stating: "No state legislator or

executive or judicial officer can war against the Constitution without violating his

undertaking to support it."ll The Court went further: A governor who asserts power to

nullify a federal court manifests that the fiat of a state governor, and not the Constitution

of the United States, would be the supreme law of the land.

6 Idaho Constitution, Article III, § 25 (Oath of Office). See also Idaho Code § 59-401.

7 Article 6 § 2, U.S. Constitution.

s 358 U.S. 1,78 S.Ct. 1401 (1958).

9343 U.S. 483,74 SCt. 686 (1954).

10 358 U.S. at 4, 78 S.Ct. at 1403.

II Id. at 18,78 S.Ct. at 1410.

Conclusion

There is no right to pick and choose which federal laws a State will follow. Aside

from ignoring the Supremacy Clause in Article VI, Clause 2 of the United States

Constitution, that contention cannot be reconciled with Article I, § 3 of the Idaho

Constitution or the oath of office prescribed in Article III, § 25. I hope this brief analysis

responds adequately to your inquiry.

Sincerely,

Brian Kane

Assistant Chief Deputy [Attorney General]