Can state refusal to cooperate with federal enforcement of laws, or the implementation of federal programs really hinder the federal government’s goals?

James Madison said it would. In fact, he wrote in Federalist #46 that noncooperation “would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

The Tenth Amendment Center builds its nullification strategy on Madison’s blueprint  – this refusal to cooperate. The federal government depends on state and local action to enforce almost all of its laws and to implement almost all of its programs. That means simple state and local refusal to help could drastically hinder, or even stop, enforcement of most federal laws and the implementation of most federal programs.

But many Americans remain skeptical. Despite ample evidence to the contrary, they believe the federal government has the wherewithal to enforce its will with or without state action.

We often point to state legalization of marijuana as an example of the power of state noncooperation. California’s legalization of medical marijuana in 1996 set off a tsunami the federal government has never been able to stop. Despite intense and sustained enforcement efforts, and a Supreme Court decision in its favor, more than half the state in the country have simply ignored federal prohibition and legalized marijuana for medical  – and in four states even recreational use. With state legalization comes a decrease in state enforcement. That leaves it to the feds to enforce prohibition on their own. They can’t. State marijuana laws continue to effectively nullify federal prohibition.

But some skeptics still insist the feds could enforce marijuana laws if they really wanted to. They just choose not to enforce them for political reasons. As a result, these naysayers continue to poo-poo the power of state noncooperation.

Of course, the federal government would never admit it depends on state cooperation, nor that state legalization of marijuana has undermined its policy of prohibition. But in a report published in 1931, the federal government actually did admit state refusal to cooperate was drastically hindering federal alcohol prohibition, a policy it emphatically did want to enforce.

They even called it “nullification.”

Following is an excerpt from a report issued by the Nation Commission on Law Observance and Enforcement titled Report on the Enforcement of the Prohibition Laws of the United States.

It is generally admitted and indeed has been demonstrated by experience that state cooperation is necessary to effective enforcement. In states which decline to cooperate and in those which give but a perfunctory or lukewarm cooperation, not only does local federal enforcement fail, but those localities become serious points for infecting others. As things are at present, there is virtual local option. It seems to be admitted by government and demonstrated by experience that it is substantially impracticable for the federal government alone to enforce the declared policy of the National Prohibition Act effectively as to home production. Obviously, nullification by failure of state cooperation and acquiesced-in nullification in homes have serious implications. Enforcement of national law with a clearly announced national policy, such as is set forth in Section 3 of the National Prohibition Act, cannot be pronounced satisfactory when gaps of such extent and far-reaching effect are left open.[Emphasis added]

Nullification through noncooperation can work. Even the feds say so.

Mike Maharrey

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