Contemporary assertions of state sovereignty and the safeguards of American federalism.

• Author: Dinan, John
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

Recent state statutes and constitutional amendments challenging federal health care legislation and other federal laws have attracted significant attention, both from critics who view them as nullification acts that are inconsistent with the Supremacy Clause and from some supporters who have been equally willing to embrace the nullification label for the purpose of defending such legislation. Upon closer examination, it becomes possible to view these measures as falling short of invoking the clearly repudiated doctrine of nullification and as capable of contributing under certain conditions to safeguarding federalism principles. An analysis of these recent assertions of state sovereignty--whether regarding health care, guns, drivers' licenses, or medical marijuana--can contribute to a better understanding of the range of opportunities for states to wield influence in the U.S. federal system by showing that state statutes challenging federal law can play a role, alongside of, and occasionally in place of, traditional mechanisms by which states can advance their interests in the national political process.

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States have historically advanced their interests in the United States federal system through various mechanisms whose legitimacy and effectiveness are clearly established. (1) State officials have engaged in intergovernmental lobbying, individually and through organizations such as the National Governors Association, to frequent effect in shaping congressional legislation (2) and securing relief from administrative officials. (3) State officials have also filed suit against federal laws seen as exceeding the legitimate reach of congressional power with occasional success. (4)

In recent years, states have gone beyond these longstanding mechanisms of state influence by enacting measures in direct opposition to federal statutes, as typified by the enactment of state statutes and constitutional amendments challenging the individual insurance mandate provision of the recently enacted federal health care legislation. (5) These state health freedom measures, along with firearms freedom statutes passed in various states, have attracted significant scholarly attention. (6)

Many scholars have decried these state measures as nullification acts that are inconsistent with the Supremacy Clause of the United States Constitution and have no place or effect in the United States federal system. Sean Wilentz may be more forceful than most scholars in his denunciation of these measures--he refers to them as the product of "mendacity"--but, in general, he can be seen as expressing the dominant understanding. (7) As he argues, recent assertions of state sovereignty in regard to federal health care and gun laws are embodiments of the "discredited ideas" of "nullification and interposition" of the sort invoked by South Carolina in the 1830's and other southern states in the 1950's and with the effect of "subvert[ing] the constitutional pillars of American nationhood." (8)

Meanwhile, some supporters have been equally willing to embrace the nullification label--not only regarding the recent health and gun measures, but also regarding challenges to federal driver's license and drug laws--for the purpose of defending them as modern invocations of the doctrine of nullification embodied by Thomas Jefferson's Kentucky Resolutions of 1798. Thus, Thomas E. Woods Jr., in his recent book, Nullification: How to Resist Federal Tyranny in the 21st Century, argues that "[t]wo dozen states nullified the REAL ID Act of 2005," and "[o]ne of the most successful examples of modern-day nullification involves the medicinal use of marijuana," wherein "states are openly resisting the federal government's policy." (9) He writes that "[n]ullification is being contemplated in many other areas of American life as well--and not just in health care," including passage of "Firearms Freedom Act[s]." (10) Woods concludes that "[t]his is the spirit in which the Jeffersonian remedy of state interposition or nullification is once again being pursued." (11)

Upon closer examination, and contrary to the statements of supporters and critics alike, these recent state measures regarding health care, guns, driver's licenses, and medicinal marijuana fall short of invoking the clearly discredited doctrine of nullification embodied in the Kentucky Resolutions of 1798, (12) the resolutions of several New England states in response to the Embargo of 1807, (13) the South Carolina Nullification Ordinance of 1832, (14) Wisconsin's nullification of the Fugitive Slave Law in 1859, (15) and interposition acts adopted by eight southern states in 1956 and 1957 in response to the Supreme Court's school desegregation rulings. (16) Rather, as I will argue, these recent state measures illustrate several ways that states are capable of safeguarding federalism principles without engaging in nullification.

These recent state measures can contribute to restraining federal power and preserving state autonomy in several ways. States have in some instances influenced congressional or executive decisionmaking by enacting measures that vow non-acquiescence to, or are inconsistent with, federal law and thereby raise the profile of federalism concerns so as to lead to a federal statute being enforced in a way that is more responsive to state concerns. In another set of instances, whose outcome is not yet determined, states can exploit or anticipate changes in Supreme Court doctrine on account of changes in the composition or disposition of the Justices by enacting statutes that might pave the way for a Court ruling deeming state acts not inconsistent with federal law.

One benefit of such an analysis is to provide a more accurate account of these recent assertions of state sovereignty. Affixing the nullification label to these measures--as critics and some supporters have both done--is misleading not only because it ignores important differences between nearly all of these recent measures and classic cases of nullification, but also because it ignores important differences among these recent measures.

Another benefit of this analysis is to contribute to a better understanding of the range of opportunities for states to wield influence in the United States federal system. Much of the scholarly commentary regarding these recent state measures fails to appreciate that the U.S. federal system does not provide clear and settled answers to a number of questions concerning federal-state relations, thereby enabling state officials to act in areas where federal law is uncertain or in flux. The Supremacy Clause makes clear that federal law prevails over conflicting state law, and any notion to the contrary has long ago been clearly and appropriately repudiated in a way that some supporters of these recent measures fail to appreciate. But to the extent that it is unclear if a federal law does in fact conflict with a state measure or it is uncertain if the federal law or its application in a particular circumstance is in fact legitimate, especially in areas where the law is unsettled, states can enact measures capable of shaping how federal law is enforced by executive officials or interpreted by judges. It is in this respect that state challenges to federal law have the potential to be effective in advancing state interests. Several scholars have in recent years called attention to these various ways that states are able to "talk back" to federal officials in various fashions. My aim in this paper is to continue this line of inquiry. (17)

The overriding benefit of this analysis is to contribute to an enduring inquiry into the mechanisms that preserve what James Madison referred to as the "compound republic of America" (18) by showing that state challenges to federal law can, under certain conditions, contribute to the safeguarding of federalism principles. Alongside other mechanisms that can preserve federal principles, including the political process (19) and judicial process, (20) it is also appropriate to consider assertions of state sovereignty, at least in the form they have generally taken in recent years.

1. PASSAGE OF STATE LAWS THAT VOW NON-ACQUIESCENCE TO OR ARE INCONSISTENT WITH FEDERAL STATUTES

   1. Driver's Licenses

      Until recently, states had full power over issuance of driver's licenses. In enacting the Drivers Privacy Protection Act ("DPPA") in 1994, (21) a law that survived a Tenth Amendment challenge in Reno v. Condon, (22) Congress restricted the personal information that state motor vehicle agencies can release to the public. Aside from the limited requirements in the DPPA, states remained free to determine who qualified for a license, what documentation was required for obtaining a license, and what information was included on a license. This changed when the terrorist attacks of September 11, 2001 and concerns about illegal immigration led to the imposition of federal requirements on the issuance and format of state driver's licenses. Congress took an initial step in December 2004 by passing the Intelligence Reform and Terrorism Prevention Act, which responded to a recommendation of the 9/11 Commission by directing the Transportation Secretary to initiate a process of negotiated rulemaking to set minimum federal standards for driver's licenses. (23) Congress then went further in May 2005 and enacted the more stringent REAL ID Act as an amendment to a supplemental defense appropriations bill. (24) The REAL ID Act required that states demand and verify certain forms of documentation before issuing licenses and that the issued licenses include certain information and follow a particular format. (25) States were required to bring their licenses into compliance by May 2008 or else see their citizens unable to use them as documentation for boarding airplanes or entering federal buildings. (26)

      Between 2007 and 2009, twenty-five states enacted resolutions and statutes opposing...