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Posts published in “Day: April 12, 2020”

Government closest/nullification


Nullification. The Idaho Republican Party hereby recommends that the Idaho Legislature and Governor nullify any and all existing and future unconstitutional federal mandates and laws, funded or unfunded, that infringe on Idaho’s 10th Amendment sovereignty. We also recommend that the State of Idaho continue to request funding and assistance from the Federal Government which complies with the Constitutional provision of the 10th Amendment, and recommend that the State of Idaho resist the withholding of federal funds as a means of forced compliance with the unconstitutional federal mandates and laws.
► Idaho Republican Party platform, 2012.

Government in the United States operates in regional levels: There are local governments, an intermediate state level, and a federal government based in Washington. Polling has shown with some consistency that government is trusted in relationship to how close to the constituent it is. A city government, in general and in theory, is trusted more than the state, which in turn is trusted more than the federal government.

As Thomas Jefferson is supposed to have said, but actually didn’t, “The government closest to the people serves the people best.”

At least sentiment often runs that way. Get down to cases and you can find poorly run – as well as well-run – units of government at all levels. Government agencies operated from far away usually come to most people’s attention when something goes wrong and the trouble winds up in news reports, and that colors the overall sense of the agency. More local agencies are less likely to be treated with so broad a brush.

The concept of trust-those-more-local can and does have ideological application, however.
Among many conservative activists who dislike government generally, a special loathing is held for the federal government. That helps account for a widespread support among activist Republicans, in some states at least, for nullification.

“Nullification” in United States history and government typically has expressed the idea that if a state government disapproves of a federal action, it can invalidate – nullify, or declare that action null. (The idea of local governments trying to nullify a state action has been mentioned from time to time, but hardly ever pursued.) It’s an old concept, but despite the age there’s little legal or other support for it, especially since 1865.

The theory behind it is that the Constitution is just a compact, in effect a treaty, between the states, and the states have retained primary authority in the system. The closest thing to constitutional support for this is the 10th amendment, which said, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Constitution itself does not say it was established by the states, but rather by “We the people of the United States.” Nothing in the constitution lets states nullify federal actions, and courts consistently have affirmed federal supremacy (though the federal government has limited authority to force states into action). In the greatest congressional debate on the subject, featuring the likes of John Calhoun (pro) and Daniel Webster (con), Webster’s arguments carried the day. (One interesting specific application he made is worth a thought: If the United States declared war, could one or more states simply decide not to participate? Nullification theoretically would suggest that they could.)

The idea of nullification surfaced early in the nation’s history, in the Kentucky and Virginia Resolutions (which Jefferson had a hand in writing). Several of the first major sectional battles in the nation invoked the cry of nullification, the hottest of these coming in 1832, when South Carolina tried to nullify a federal tariff; that conflict was resolved through a compromise in Congress over the tariff. But the attitudes surrounding nullification took root and grew, and fed into the secessionist movement in the south that precipitated the Civil War.

The result of the Civil War might have put an end to nullification as an active issue. It didn’t. It returned again in the Civil Rights era, as several southern states opposed federal efforts at desegregation.

And it has come back again. Nullification activism has returned in a number of states, where legislation has been introduced to provide for at-will nullification of federal actions (notwithstanding widespread legal advice that such measures would not stand up in court).
It even has come up at the federal level. Matthew Whittaker, who served as acting attorney general (of the United States in 2018-19), had said earlier in 2013 that, “As a principle, it has been turned down by the courts and our federal government has not recognized it. Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?”

Some states would cheer him on, but the first sentence of his statement is the one remaining operative.