As should be obvious to most readers here by now, supporters and opponents of our nullification efforts often change teams depending on what political party is in power. One of the best examples is ThinkProgress Justice Editor Ian Millhiser.
In 2014, when TAC’s campaign to turn off resources to NSA spying was just building steam and international attention, Ian felt it was necessary to warn the left away from participating in such efforts
Well, the strategy is based on anti-commandeering, the long-held Supreme Court doctrine which says that states can’t be required to use resources or personnel to help enforce federal acts or regulatory programs.
Ian called this a “slightly different constitutional theory than pure nullification” of the type that was promoted by John C. Calhoun and South Carolina. He’s right about that. But of course, according to Ian – nullification, in any form, is dangerous.
However, what Ian focused more heavily on was the fact that this might work with a big coalition. And if it did work, he warned, people might get the idea to do it on other issues. He wrote:
“Don’t doubt for a minute that, if the Tenth Amendment Center succeeds in establishing a precedent for nullification-via-power-outages, they will immediately deploy this and similar tactics to implement other parts of their sweeping libertarian agency. Some of their other initiatives include bills purporting to nullify federal gun laws and the Affordable Care Act, as well as a truly surreal proposal to undermine the Federal Reserve by requiring citizens to pay their state taxes in gold or silver.”
Short version of Ian’s position?
The OffNow campaign from TAC is a form of nullification. Even if they can win on legal arguments, you shouldn’t support it, because people might use it to oppose other things we support.
Now fast-forward to this week.
The hot topic now is California and federal immigration law. When the state passed a law to ban the use of resources to help enforce federal immigration laws, they did so under that same anti-commandeering doctrine. Ian describes the state law like this:
One of them withholds state assistance from federal officials seeking to enforce immigration laws — while fully permitting federal officials to enforce those laws on their own.
Sounds familiar, doesn’t it?
Withholding state assistance to a federal act is just what the effort to withhold state resources to NSA spying does. It doesn’t prevent the feds from trucking in water or buying it from private companies, it just says that the state will not be involved. It doesn’t prevent the feds from setting up solar panels for electricity or buying it from private companies, it just says the state will withhold that assistance.
Exactly the same approach.
Unsurprisingly, Ian changed his tune when it comes to using this exact same tool against the Trump administration, like the self-serving partisan hack that he is.
Here it is, in his own words:
But more to the point, the pro-immigrant California laws challenged by the Justice Department are not acts of nullification and do not purport to be.
Ian couldn’t resist closing out his article without more hypocrisy. He made the case that “nullificationists” – specifically mentioning the Tenth Amendment Center,
have often tried to muddy the distinction between entirely lawful acts of state resistance to federal policies and unconstitutional acts of nullification. Doing so risks the lending credibility to nullification, by creating the false impression that states commonly engage in this practice or even that the Supreme Court endorses it.
Such a statement couldn’t be more laughable – and dangerous – when coming from a guy who takes this position:
When Obama is in office, it’s illegal nullification.
When Trump is in office, it’s not.