Although we expected and found Republican state resistance to policies like the Affordable Care Act and the Common Core, we also identified instances where nullification was invoked to resist policies like police militarization that are more closely aligned to conservative preferences.
And we also found it invoked in connection with other policies like license plate tracking that are more difficult to place on partisan spectrum. Nor is nullification just posturing. We also identify considerable variation in the strength of the state nullification proposals put forward in the past decade.
True nullification legislation declares federal policies null and void in the state; non-acquiescent nullification legislation does not explicitly question constitutionality but prevents state implementation; and procedural nullification legislation does not prevent implementation but modifies state statutes to render them out of step with federal expectations.
Our analysis finds that all three types have been used by states during this period of heightened intergovernmental tensions. Although true nullification is rare, both non-acquiescent and procedural nullification have been frequently invoked by states in the past decade. Although all 50 states have participated, we find that nullification activity is more common in states controlled by Republican legislatures, and also in more populous states. Larger states like Texas may be more likely to see themselves as independent entities that do not want or need federal intervention.
Finally, poorer states are more likely to pursue nullification, probably because they are concerned about the financial impact of new national policies on state budgets.
The fact that state leaders have recently invoked nullification over 1, times in seven years to question the constitutionality of federal policies highlights the truly tense state of current U. Policymakers and scholars alike need to understand the impact of growing invocations of nullification. Most notably, careful attention should be paid to left-leaning nullification activity during the Donald Trump presidency.
Initial evidence suggests that nullification is not just a conservative maneuver and remains a key weapon. Many states controlled by Democratic legislators have already pursued nullification challenges to the Trump administration, such as by supporting the Paris Climate Agreement after national withdrawal or blocking Trump administration immigration directives and travel bans. SSN Key Findings. They also looked at indicators of state government professionalism, such as whether the state had a full-time legislature.
Their analysis found that nullification proposals were not restricted to one part of the country, with states in every geographic region introducing such laws. State population also played a positive role, with larger states introducing and passing more nullification bills. Income showed varying degrees of negative relationships in the different nullification types. One thought is that states with lower income were more likely to favor nullification because of concerns about obligations from national laws that they would have to implement using state resources.
More at the School of Public Health. Mar 19, McCullen involves a Massachusetts law creating a foot buffer zone around abortion clinics which protesters may not enter. At issue is whether or not this violates the rights of protesters to free speech as guaranteed by the First Amendment. In a world where states could nullify federal law, Massachusetts would be the final arbiter of whether or not its law is valid; it would interpret the meaning and extent of First Amendment protections for itself.
Just as Missouri sought to define the boundaries of the commerce clause in a way that delegitimized the Federal Gun Control Act, Massachusetts sought to define the boundaries of the First Amendment in a way that would limit some protesting. In the world we currently live in, where people look to the courts to delineate the extent of constitutional protections and federal powers, the Supreme Court determines whether or not the Massachusetts law infringes on Constitutional protections.
And as near as anyone can tell, it looks like the Supreme Court is going to strike down the Massachusetts law. In other words, nullification can cut both ways. While proponents typically want to use it as a sword to whack at federal overreach, it can also be used by states to violate constitutionally guaranteed rights. Do courts decide correctly all the time? Absolutely not. Bad Supreme Court precedent is largely responsible for federal overreach today. However, there is a core of constitutional protections, consisting of most of the rights enumerated in the Bill of Rights, which the courts still do a respectable job of protecting.
Abandoning the protection courts provide by adopting extreme versions of nullification could prove disastrous for the constitutional protections which remain intact. In a general sense, to nullify simply means to make something ineffective.
Fortunately there are a variety of tools states can use to make bad federal laws ineffective without explicitly claiming that a federal law is itself void. Utah voluntarily accepts federal control of education in exchange for money. Utah voluntarily accepts onerous federal mandates regarding health insurance for the poor and simultaneously skews its entire healthcare market in exchange for Medicaid dollars. And while sending tax dollars to Washington and then refusing to accept the money that is returned with strings attached might be painful, it is certainly an effective nullification tool.
If rejecting federal money is too painful, there may be legal grounds for overturning the conditional funding altogether.
The Court has long held out the possibility that at some point, financial incentives to states become coercive and therefore violative of the Tenth Amendment. Buried in NFIB v. Sebelius the Obamacare case , the Supreme Court for the first time held that this line in the sand had been crossed.
Whether by rejecting federal funding outright or challenging it as coercive, states have options for nullifying conditional grants.
For example, the USDA sets standards for meat and poultry processing and Utah has taken it upon itself to pass and enforce identical laws.
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