Nullification or Justified Defiance? (Quick Thoughts)

Being an Originalist I am flatly opposed to the traditional concept of Nullification, that being a State ignoring or dismissing a Federal Law, Statute or other act or power, because that state does not like that law, act or power. The most significant issue with nullification is, the Constitution and Federal Law of the United States is superior to that of the States. The Supreme Court has ruled that the States cannot nullify Federal Law, since it is given supremacy over State law by the Constitution.

Article VI of the Constitution States;

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”

Idaho is preparing to pass a law which will prohibit the enforcement of the Health Care Reform act of 2010¹. What makes this interesting compared to traditional nullification is it is not because the State does not like the law (though it probably does not like it), but because the State of Idaho contends the Law in illegal or Unconstitutional. The State is contending it cannot be made to enforce an illegal law, which brings up the question, is this nullification or justified defiance and checking an abuse of power?

This will certainly quickly head to the court system, but what any decision by the courts will hinge on is this part of Article VI, “which shall be made in Pursuance thereof (of the Constitution)”. If a law is not made in pursuance to the Constitution, it cannot be enforced so it cannot be supreme. This will also a explore the order of power, since it was the States who granted the power the Federal Government has, are they also not ones to be judges an abuse of the power given? The States can challenge in federal Court, but that is both expensive for each issue, and can take years to resolve making it prohibitive for many things. Could this be an appropriate method to check federal power when laws are passed without regard to its constitutionality and just passes what it wants relying only a court to say, “your out of the box”. This concept of Idaho from first take does not prohibit a challenge and ruling against the State either, nor does it permit a State to disregard a valid law.

This is a topic that can be explored in great depth in many other aspects, but this is just a quick first impression of the most significant constitutional and power structure parts of it.

1: http://www.washingtonpost.com/wp-dyn/content/article/2011/01/20/AR2011012005860.html