Even though it’s worked.
Even though it’s working.
People keep telling me nullification won’t work.
Sometimes I fell like I’m swimming in a giant sea of negativity. Every day, some nattering nabob tries to throw cold water on our work here at the Tenth Amendment Center.
On a recent article laying out the anti-commandeering doctrine, a reader commented, “Sound’s great till the feds threaten to cut off the various grant programs they have states and local governments hooked on, then every one fall in line with the program (sic).” (Keep reading to find out how untrue this is!)
When we reported Michigan taking the first step to nullify the NDAA, one commenter opined, “This will have literally no effect.”
Two streams of thought converge to create this river of negativity. First, too many people view the federal government as all-powerful and unstoppable. Second, many seem to lack any ability to see the big picture.
When we talk about nullification, many who believe in it in principle don’t think it can effectively stop the feds. I’ve been told, “A state cannot stop the same force that toppled Hitler and Tojo.” That makes for a clever one-liner, but it’s really a ridiculous comparison. To say the federal government will respond to nullification efforts in the same way it dealt with Nazi Germany and Japan in WWII takes hyperbole to an atmospheric level. If you really believe that will happen, then you truly have descended into hopelessness, and you might as well just go build yourself a bunker and prepare for your ultimate demise.
Of course, the president could conceivably send tanks into South Carolina to force implementation of Obamacare if the state legislature ultimately passes H3101. But he won’t. Troops didn’t storm Los Angeles to shut down the medical marijuana dispensaries. The Army didn’t invade the north in 1855 to force compliance with the Fugitive Slave Act of 1850. And B-52s won’t carpet bomb Denver to destroy the retail marijuana outlets. It’s not that the feds can’t. But they won’t. People who throw out these kinds of scenarios pander in fear.
In fact, recent history indicates the feds will stand down in the face of large-scale nullification efforts. As more and more states have turned their backs on marijuana prohibition, the feds have not responded with force to assert their will. They have backed down.
Over and over and over.
Yes, they occasionally conduct raids and crackdowns (almost always with state and local assistance), but they have done nothing to slow the movement to legalize marijuana.
That leads to the second, and perhaps more important point. We don’t find ultimate success of nullification in individual acts by single states. We have to look at the bigger picture. It’s probably true that a single state refusing to cooperate with indefinite detention wouldn’t likely stop the feds from doing it if they really wanted to. One state refusing to cooperate with the NSA won’t stop spying. A single state refusing to lend assistance to enforcement of federal gun laws won’t end federal gun control. But what happens when 25 or 30 states refuse to cooperate? What happens when more than half the country nullifies an unconstitutional act? That changes the dynamic in several ways. As Madison asserted in Federalist 46, multiple states taking action “would present obstructions which the federal government would hardly be willing to encounter.” Not that they necessarily can’t encounter the obstructions with enough force, but they won’t be willing to.
Well, first off, the federal government lacks the resources. It is a fact that the feds rely on state and local assistance for almost everything they do. Read virtually any press release on a federal drug raid and you will find the words “with cooperation of state and local law enforcement.” The National Governors Association acknowledged this during the so-called government shut-down. When a large number of states refuse to lift a finger to help the feds, it makes it nearly impossible for them to implement their programs or enforce their “laws.” We can look at the marijuana issue again. As I’ve pointed out before, it would take more than twice the annual DEA budget just to shut down the 400 medical marijuana dispensaries in Denver. The federal government faces the same kind of limitations in other agencies. Figures I’ve seen indicate that more than 70 percent of the ATF raids nationwide rely on state and local assistance.
We need to wrap our heads around this very important fact: the federal government cannot enforce all of the laws rules and regulations its created, and it cannot implement and administer all of the programs it created without state assistance. Widespread noncooperation will seriously disrupt the goals of the federal behemoth. Maybe not in one state. Perhaps not even in three or four. But when 20 or even 30 states withdraw cooperation, it will indeed create “obstructions.”
Second, widespread state action sends a message. We all realize the monster along the Potomac doesn’t respond much to the people. But with enough pressure, sustained for a long period will lead to change.
Consider the 55 mph speed limit. Nobody liked it. But busybodies in D.C. decided it was necessary for highway safety and energy conservation. So in 1974, Congress established the 55 mph maximum speed limit. It didn’t mandate states implement it, but threatened to cut highway funds if more than 50 percent of drivers on state highways exceeded the limit. Of course, as time went on, more and more drivers personally nullified the federal law. On top of that, state enforcement became more and more lax. In some cases, the lack of enforcement was due to resource limitations. In others, it was intentional. By the mid-80s, it became clear the speed limit was a farce. A 1986 Sun Sentinel story highlighted the virtual nullification of the speed limit by the general public and state governments.
This is where the perpetual pessimist would predict a federal crackdown. Did it happen? No. As the Sun Sentinel reports, “despite a legal requirement to withhold federal highway funds from states where more than 50 percent of drivers exceed the limit, the U.S. Department of Transportation has yet to impose any penalties.The article goes on to highlight the many states not in compliance and noted even more were within tenths of a percent from the naughty zone.
But many other states reported percentages that were only slightly under 50 percent, and drivers in most states appear to be ignoring the speed limit on most highways.
Interestingly, research indicates enforcement does lower speeds. Clearly, the states weren’t enforcing 55.
In fact, a Philadelphia Enquirer article published in 1986 indicates the rate of noncompliance was even higher because states simply cooked the books. The reporter looked at number from Pennsylvania, New Jersey and Delaware.
The percentages in all three states, by an initial reckoning, had actually been in excess of 50 percent. But the numbers were adjusted downward through the use of statistical formulas.
Eric Bolten, spokesman for the Federal Highway Administration, said pretty much every state was in noncompliance.
“I would say virtually every state is over the 50 percent figure in the initial data submitted to the FHA.”
Did the federal government crack down? Did it yank highway funding to force compliance? Did it send in the Army to enforce the speed limit?
In 1987, the feds quietly began raising the speed limit.
Americans nullified. The feds backed down.
Madison’s blueprint works.
Let’s follow it!
Latest posts by Mike Maharrey (see all)
- Montana Gov. Bullock Vetoes Anti-Commandeering Bill: Ignorant of the Law, or a Liar? - April 1, 2015
- On the Constitution and Law: Partisan Reporter is the Butt of Her Own Joke - March 19, 2015
- Another History Professor Good at Politics, Bad at History - February 8, 2015