Under an unconstitutional proposal by Texas state Rep. Dan Flynn (R), just two people in the state of Texas — the state house speaker and the lieutenant governor — would effectively have the power to suspend any federal law within Texas’s borders, at least temporarily. The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.
Thus, by stacking the committee with loyalists, Texas’s speaker and lieutenant governor could effectively pick and choose which federal laws they wish to nullify, so long as they can agree with each other about what laws to target. Or, at least, they could do so if this proposal were constitutional.
Rep. Flynn’s proposal is rooted in an unconstitutional theory known as “nullification,” which claims that a state can unilaterally declare a federal law unconstitutional and thus void within the state’s borders. The Constitution, however, explicitly provides that duly enacted federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Thus, federal law is “supreme” over state law, and state laws that conflict with federal law — or which seek to openly defy federal law — are preempted by the federal government’s legislation.
Proponents of nullification seek to get around this fact by arguing that state lawmakers aren’t simply invalidating the law they do not wish to follow, they are also declaring it unconstitutional. But the Constitution does not give state lawmakers the power to issue binding pronouncements on whether federal laws are constitutional. To the contrary, the Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” If a federal law actually is unconstitutional, then the proper legal course is to file a lawsuit seeking to strike the law down. As James Madison warned early in American history, nullification would “speedily put an end to the Union itself” because it would render each obligation a state’s citizens owe to the union as a whole optional. In effect, nullification is a way to secede from the union one law at a time.
Flynn’s bill containing his proposal was only filed earlier this month, so it remains to be seen whether it will gain steam in the legislature. There is, however, at least some signs that a grand proposal for nullification will be taken seriously in Texas — in 2011, Texas Gov. Rick Perry (R) signed a law purporting to nullify a 2007 law signed by President George W. Bush that gradually phases out older, less energy efficient light bulbs.