Nullification is dead.
At least that’s the opinion of Duke University Law School professor Ernest Young.
But despite this emphatic epitaph, Young sees great potential for nullification as a tool to limit federal power. In a paper published in the Case Western Reserve Law Review, Young makes a strong case for nullification, highlighting state efforts that have effectively nullified federal marijuana prohibition.
So, how can this be? How can nullification be simultaneously dead and buried, yet still a serve as a powerful tool to check federal overreach?
The answer lies in the two distinct definitions of nullification. While “legal” nullification as laid out by John C. Calhoun may be dead, Young argues that nullification through non-cooperation, as recommended by James Madison in Federalist #46, remains a powerful means to confront overreaching federal authority. He even cites the Tenth Amendment Center’s definition of nullification – “any act or set of acts which render a law null, void or just unenforceable” – to explain this distinction.
“For John C. Calhoun and the South Carolina legislature, nullification rested on a judgment that the federal tariff was unconstitutional. Nullifiers thus did not so much deny the supremacy of valid federal laws but rather the exclusivity of federal judicial review as a mechanism for determining those laws’ constitutional validity. States that have legalized marijuana, by contrast, do not rely on an argument that the federal CSA is unconstitutional (although many proponents may well think that), and they do not purport to affect the binding legal force of the federal prohibition. States like California and Colorado have ‘legalized’ marijuana only as a matter of state law. They are simply making a bet—and it is a good one—that absent state cooperation, federal law is unlikely to be enforced in their states. This is functional—not principled—nullification, but its effect on the ground is very close to what John C. Calhoun’s South Carolina hoped to achieve.”
Young makes a powerful case for nullification based on noncooperation by closely examining marijuana legalization in Colorado and Washington. These were the first states to legalize marijuana use for recreational use, despite complete federal marijuana prohibition. Today, six other states have followed suit. Meanwhile more than two-dozen states have legalized medicinal cannabis.
As Young put it, “federal marijuana law is the ‘supreme law of the land.'” Nevertheless the feds don’t have the resources to maintain prohibition. He cites Heather Gerken and Jessica Bulman-Pozen who argued states have the “power of the servant.”
“Because federal authorities depend on state officials to enforce federal law, state officials have opportunities to influence the shape of federal regulation and, sometimes, to resist aspects of federal policy that they do not like.”
But Young asserts state power actually goes further than those scholars admit.
“But modern nullification efforts go beyond uncooperative federalism. Colorado and Washington didn’t just subvert federal marijuana lawn by nibbling around the edges, the states went on strike. Hence, as Robert Mikos has observed, ‘[t]he federal government has too few law enforcement agents to handle the large number of potential targets. Simply put, the expected sanctions for using or supplying marijuana under federal law are too low, standing alone, to deter many prospective marijuana users or suppliers.'”
The American system of rigid federalism established by the original Constitution has morphed into what political scientists often call “cooperative federalism.” While this evolution of the American political system has allowed the general government to invade the sovereignty of the states, erased the boundaries between state and federal authority, and in many ways blended state and federal spheres of power, Young argues that it also offers the state new ways to exert control over federal actions.
“As Colorado and Washington are demonstrating, their ability to oppose federal policy—and get away with it, to a considerable extent—arises from the blending of federal and state institutions within cooperative federalism schemes. The federal government depends on state cooperation to enforce national law, and that dependence is what empowers state officials to dissent … This power of opposition may not extend far enough for dissenting states to establish and secure their own policies, but they can at least force a national conversation and some sort of compromise on the issues they care about.”
Young includes a robust discussion of the anti-commandeering doctrine, explaining how the principle established by Justice Joseph Story in 1842 creates a legal framework supporting nullification through non-cooperation.
Simply put, the Supreme Court has consistently held that the federal government cannot force states to use their personnel or resources to enforce federal law or implement federal programs. But Young warns future court precedent could undermine the scope of the anti-commandeering doctrine. Several states, including Oklahoma and Nebraska, sued Colorado. While the Supreme Court declined to hear that case, similar arguments should be expected in the future.
Regardless, with more than half the country now at least partially non-compliant with federal marijuana prohibition, the feds will probably never stuff the Jeanie back in the bottle no matter what the courts say. State action has unraveled federal marijuana policy. And as Young says, the same strategy can be applied to other issues.
“The history of marijuana legalization over the past decades suggests that, at least on some issues, contemporary nullification is a winning strategy.”