I think we need a review.
This Oklahoma bill is an excellent case study of constitutional law and constitutional realms of power. Here we have a state legislature asserting that it will not require the state to follow federal laws that the state legislature deems unconstitutional.
That’s a mouthful.
Let’s look at some of the details.
“Oklahoma lawmakers have passed a bill they say would let them declare federal laws and executive orders unconstitutional. The bill would let the legislature ask the attorney general to challenge federal laws in court. Should the AG decline to do so, the legislature could declare federal laws unconstitutional.” Koco News
So, the Oklahoma legislature essentially made formal something that states sometimes already do without making it formal. In other words, if states don’t like a federal law, believe a federal law is unconstitutional and the like, they, from time to time, refuse to follow the federal law.
Nullification
The formal term for this is nullification. The idea of “nullification” was formally introduced when Madison and Jefferson fought back against Adams and his sedition act. The Sedition Act gives Adams power over activities and writings he believed to be malicious or damaging to his presidency.
Jefferson and Madison, horrified by this extreme unconstitutional power grab by the federal government, urged their states to refute or refuse to obey the law on the grounds that such a law was unconstitutional.
It was, after all, a convention of states, who formally established the new federal government (although some argue that the founders actually wanted it to be the people, rather than the states, since it was state sent citizen delegates, not state legislatures, who met at the convention). Hence, the idea that states can refuse to enforce an unconstitutional law was born. Of course, this idea was not born without its consequences. The principle of nullification is what led to the Civil War.
Hamilton sat on the other side of this debate, fearing the worst should the sovereignty and power of the federal government be jeopardized. If the point of the federal government was to bring about stability and order to an otherwise chaotic, unruly conglomeration of states, nullification could be detrimental to this cause. If any state can refuse to follow federal law simply because the state has deemed the law unconstitutional, what good is the power of the federal government then? Why even have a federal government?
The Debate
So, now, we sit here today having the same debates. Should the states be able to declare a federal law unconstitutional? Can states truly determine the constitutionality of a law? Who checks the states interpretation? If states can determine the constitutionality of federal law, what does that mean of federal power? If states can simply choose to ignore federal laws at their will, we may as well go back to the Articles of Confederation where the federal government has no power and the states all the power. BUT such a world was fraught with chaos, anarchy, violence, division and was leading to tyranny.
And yet, what should a state do with a federal government that is passing unconstitutional laws? Unconstitutional laws are illegal and arbitrary. They are the result of a federal government acting outside of its job description and despotic in nature. The only defense of the people against such a power is their states. Would we not want the states to stand up and protect their citizens should the federal government suddenly choose to pass a law ordering the states to round up and imprison all Christians, or Muslims, or Hispanics etc? Surely such a law should be immediately reviled and refused, for the states would most certainly be violating their own constitutional powers in order to carry out such an order.
Yet, if we say states can nullify one federal law, we have to say they can nullify any and vice versa, if we say states can’t nullify one law, we must say they can’t nullify them all. Where’s the line? Is it ok for states to nullify laws that reach a certain point of obvious unconstitutionality but not those that are less obviously unconstitutional? Are states only allowed to protect their citizens from some unconstitutional laws but not all? But what if the state starts deciding that every law is unconstitutional, even though certain laws clearly fall within the Constitutional confines of the federal government? Who then forces the states into submission?
The debate gets complicated and convoluted if we go too far with it.
Some Clarity
Here’s some clarity. The article reference above gives this quotes about the Oklahoma bill:
“But the legislation, should it become law, is itself likely to be challenged as unconstitutional.”
and
“We’re saying we have the power in this building to declare what Congress did unconstitutional. Folks, that’s not how it works. We don’t get to magically say in this building, ‘That’s unconstitutional, so we’re not going to follow federal law.’ That’s not how it works,” said Minority Leader Emily Virgin, D-Norman.
These quotes are based on an incorrect premise. Now, someone may challenge this Oklahoma bill but, hear me on this, Oklahoma cannot violate the federal Constitution. The federal constitution is the federal constitution. It applies to, confines and directs the federal government. Just like the Oklahoma constitution does not apply to the federal government the federal constitution doesn’t apply to Oklahoma. The federal government cannot violate the Oklahoma constitution so why should we assume that Oklahoma can violate the federal government’s constitution?
In other words, Oklahoma’s choice to pass a bill that says it refuses to follow certain federal laws it deems unconstitutional, cannot be federally unconstitutional. Granted, if the state Constitution has a provision limiting this kind of state legislation, such a law could be unconstitutional by the state’s standards, but only the state standards.
Now, this law may be against the federal law that the state is refusing to follow, but it cannot be unconstitutional by the federal constitution’s standards.
Thus, the state has the right to pass this legislation even though it is risking potential punishment from the federal government.
“The primary purpose of this bill is to push back on executive orders that infringe on states’ rights and on constitutional rights,” said Rep. Kevin West, R-Moore.
Conclusion
I’m rather cynical about the knowledge our politicians hold of the Constitution. Most of these state legislatures probably don’t know a whole lot about the U.S. Constitution or really understand its role but, I’d like to believe that they grasp that federal laws in violation of the federal government’s job description are and should be void. This is a Madisonian and Jeffersonian principle and one that states have carried since the principle was birthed in the 1790s.
This principle DOES have consequences. The Civil War is a prime example. States should never refuse to follow federal law lightly. Otherwise, it is an open door to anarchy.
But, choosing to follow any and all federal law, even if that federal law is in clear violation of the Constitution, is an open door to tyranny.
It was the states who created the Constitution and it’s the states who can amend it; therefore, it should be within the right of the states to call out the federal government for unconstitutional behavior.
I see no other alternative. We must acknowledge the danger of such power while also admitting its necessity.
I’ll let Hamilton, the greatest opponent of such state power, complete my argument in favor of such state power.
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.“
The Liberty Belle
Great article!
Awesome explanation. It is a no-win decision, but may be needed to stop the tyranny in DC.
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