By Lorraine Marie Simonis
Ms. Simonis is a J.D. candidate at the University of Virginia School of Law, graduating in May 2018.
Editor’s Note: This piece originally appeared in the Richmond Times-Dispatch. A bill to ban “sanctuary cities” in Virginia–which has none–passed the legislature and awaits the Governor’s action, expected any day.
Earlier this month, while defending the Department of Justice’s recent lawsuit against California, Attorney General Jeff Sessions accused the state of attempting to nullify federal immigration law.
In 2017, California passed three laws limiting California officials’ and employers’ ability to cooperate with federal immigration authorities.
“There is no nullification. There is no secession,” Sessions chided. Sessions then invited anyone who doubted him to visit former South Carolina Sen. John C. Calhoun’s grave.
By comparing California’s actions to nullification, Sessions attempts to tie the sanctuary movement to the Civil War and our nation’s ugly history of race relations. Perhaps because both Sessions and Trump have been accused of racism themselves, the nullification labels have allowed them to turn the tables and ingeniously label their opponents as the ones in the tradition of the Confederacy.
Ingenuity notwithstanding, the comparison is wrong as a historical matter.
State nullification was first formally floated by Thomas Jefferson in his draft of the Kentucky Resolutions of 1798; Jefferson had ghost-written the Resolutions for the Kentucky legislature to protest the Alien and Sedition Acts, laws which he believed unconstitutionally targeted foreigners and the press.
At its most basic, nullification refers to the doctrine that a state can nullify — or invalidate — federal laws it deems unconstitutional. The idea was that the Constitution was a contract and the states the parties to it, so each state was entitled to assert itself against perceived violations of that contract. The doctrine presented a direct challenge to judicial supremacy in holding that a state, rather than the courts, could judge an act’s constitutionality.
To see nullification in action, however, we have to fast-forward to 1830s South Carolina. After the War of 1812, the United States imposed increasingly high tariffs on foreign imports to encourage native manufacturing. In the South, these tariffs increased the price of consumer goods without providing much immediate benefit to the region’s primarily agricultural economy. South Carolina claimed these tariffs were not only unfair, but also unconstitutional.
Opposition reached a fever pitch in the 1830s, with a Calhoun-led wing calling for nullification. Like Jefferson, Calhoun embraced a contractual view of the Constitution and challenged judicial supremacy. But South Carolina then went beyond just writing about nullification: a state convention passed a Nullification Ordinance in 1832 purporting to render the tariff “null and void” and prohibiting its enforcement. The tariff, Calhoun argued, would be null in South Carolina until three-fourths of the states — the number required to amend the Constitution — overrode its interpretation.
What California is doing is very different. California Gov. Jerry Brown is not Calhoun’s ideological heir. For one thing, there have been no nullifying resolutions or conventions or ordinances in connection with the sanctuary movement — out of California, or anywhere else.
More important, California has not claimed that states are the arbiters of a law’s constitutionality; it is not challenging the courts’ traditional role as the arbiters of constitutional questions. In fact, several sanctuary cities inside and outside California have filed actions in federal court seeking to have judges declare the Trump administration’s immigration policies unconstitutional.
Rather, what California and the sanctuary cities are arguing is that local officials are not required to participate in the administration of a federal regulatory scheme. Not only does that view not challenge judicial supremacy, it is a view that follows the Supreme Court’s own precedent. According to the Supreme Court, the Constitution prohibits Congress from “commandeering” state officers — that is, requiring them to enforce federal law.
If Sessions wants to draw historical parallels, he’d be better advised to appeal to Jefferson’s more moderate friend, James Madison, who rejected nullification in favor of what he called “interposition.” While Jefferson was writing about nullification, Madison argued in 1798 that states could “sound the alarm” against federal abuse, but he stopped short of embracing their right to invalidate federal law. And during the South Carolina Nullification Crisis, Madison vigorously opposed Calhoun’s nullification efforts.
Throughout the 1800s, states appealed to Madison’s theory — in word and in deed. In the early 1800s, for example, Connecticut instructed its state officials not to assist federal officials in enforcing the Embargo Acts crippling its shipping industry, citing Madison’s theory of interposition as justification for its refusal.
Inconveniently for Sessions, however, such resistance sounds suspiciously like the constitutional doctrine of anti-commandeering, which the Supreme Court has upheld as consistent with—even required by—our federal system.
Ms. Simonis can be reached at firstname.lastname@example.org.
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