Nullification Nonsense

Earlier this week I took Steve Benen to task for suggesting that state governments could not refuse to enforce federal laws.  Benen had suggested that such decisions were tantamount to nullification. (A claim he has walked back, to his credit.)  While Benen’s outrage was a bit misplaced in the post I critiqued, it’s not as if his concerns about nullification are unwarranted.  Some state legislators are engaged in efforts to nullify federal law.

Perhaps the latest example is this bill, which recently passed the Missouri legislature.  After reciting the importance of the Second Amendment and declaring that state officials cannot enforce federal gun laws, it goes on to make it a misdemeanor for a federal official to enforce federal law within the state.  This is an attempt at nullification, and it’s completely unconstitutional.  States may retain the right to refuse to assist the federal government, but states do not have the right to obstruct (let alone criminalize) federal enforcement efforts (nor do they have the power to authorize civil causes of action against federal officials who are enforcing federal law, as this bill does).

The most that could be said in the bill’s defense is that it only purports to nullify those federal statutes that violate the Second Amendment (though it does list some specific laws and potential restrictions as presumptively violative of the Second Amendment).  So, if federal courts uphold federal gun laws as consistent with the Second Amendment, then this statute would not constrain federal enforcement of such laws (provided that Missouri courts don’t interpret the Missouri Constitution to offer greater protection to gun rights within the state).  Barring this sort of  interpretation, the law would still have no effect, as the criminal provisions of the law would be wholly unenforceable, even in state courts (which are required to respect and give effect to federal law under the Supremacy Clause).  So even under the most charitable interpretation, that law is only symbolic.  But if all state legislators want to do is express their objection to federal law with symbolic legislation, then they should just pass symbolic resolutions, and dispense with efforts to criminalize or other sanction federal officials’ enforcement of federal law.  I’m all for state legislators expressing their disapproval of federal policy, but empty nullification threats are not a productive way to express such views.

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