At times, the federal government seems overwhelming. Frankly, it sometimes appears as an unstoppable juggernaut without any obstacle in its path. Undoubtedly, the scale of power assumed by the federal government has been immense. It has morphed from the stated purpose of a “more perfect union” to an unconstrained nationalist state.
Despite this perception, Judge Andrew Napolitano recently suggested that if a single state acted to obstruct federal mandates, it would make new federal gun laws “nearly impossible to enforce” within that state.
Napolitano’s words are not based on theory, they have been definitively proven.
Washington recently stood up to the federal government’s anti-marijuana mandates in a direct way. After gathering the requisite amount of signatures in 2011, Washington passed Initiative 502 after a successful referendum on the November 2012 general ballot. This initiative is credited with spurring an 81% electoral turnout in Washington, the highest in the union. While the state retained regulatory power over marijuana usage, it turned its back on and intentionally disregarded federal restrictions toward the substance.
After observing Washington gather enough signatures for its referendum, Colorado followed suit in opposing federal drug prohibitions. Once started as a proposal in January 2012, the state passed a constitutional amendment to legalize marijuana usage after its own referendum on November 6, 2012. As a consequence, another state stood firmly against federal policy and produced an intentionally conflicting license to possess and use a substance banned by the federal government.
The actions of Washington and Colorado seem to have forced the hand of the union’s capitol. At this point, the White House has conceded the use of its power to prosecute marijuana usage in these states. This development can only be attributed to the amount of resources the government would have to devote to this enforcement strategy, and the cooperation needed from state officials to pursue and secure convictions.
This phenomenon of successful resistance is not restricted to substance control.
In 2007, immediate controversy arose over the federal government’s desire to issue identification card standards for the states. In doing so, the federal government was interested in making identification data uniform, requiring the states to adopt the same process to obtain an identification card, and linking state information databases.
The REAL ID Act, as it would be called, imposed a national standard by forcing the states to adopt uniform standards for their identification cards – or did it?
Maine responded by passing a resolution in 2007 that refused any type of REAL ID adoption in the state. Surely, Maine’s legislature was warned by opponents who dreaded the thought of opposing the federal juggernaut. Leading the charge, Maine showed that one state can stand up against the iron will of the federal state.
When Maine stood up, Utah took notice. Utah passed a similar bill a month later. The Utah law noted that REAL ID is “in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government.” Since that time, 22 states passed similar bills and resolutions, creating additional opposition toward the national standard. Similar resolutions are pending in over a dozen additional states.
As a result, the REAL ID Act has been effectively neutered in much of the country. The federal government has not elected to devote its resources to enforce the mandate, sue the participating states, or send in the tanks as a result.
From these two examples, we can observe that a large part of the federal government’s contemporary supremacy is reliant on the cooperation it receives from the states. Absent this cooperation, the federal government is not as fierce and imposing as it may seem.
Political philosopher and economist Hans-Hermann Hoppe realized this, noting:
“Without local enforcement, by compliant local authorities, the will of the central government is not much more than hot air.”
Surely, our contemporary perception toward the federal government is at least partially because of the “built in” state cooperation that contributes to its power apparatus.
In The Federalist #46, Madison suggested shattering this type of cooperation through state barricades, which could be utilized to block unconstitutional and unpopular federal law. He wrote that “refusal to cooperate with officers of the union” would be a viable strategy, and said multiple states taking this approach would create “obstructions which the federal government would hardly be willing to encounter.”
Madison did not suggest waiting for the federal courts to weigh in on controversial policy, either as a final hope or last resort.
Recent history suggests that when states invoke Madison’s advice and refuse to cooperative, the ambitions of the federal government can be rendered impotent and ineffectual. Federal authority is not infallible or impervious.
The next time the federal government seems too powerful for imposing, or naysayers doubt the anti-commandeering doctrine or nullification strategy, consider the alternative. In these two recent instances, states have proven that the federal government simply cannot enforce all it wants to in the face of blatant opposition. The states that stood up first on these matters began the charge toward liberty.