Wednesday evening, the Trump administration filed a suit against the state of California, relying largely on dubious legal theories to claim that several of the state’s pro-immigrant laws must be struck down. California governor Jerry Brown (D), in response, mocked the suits, describing them as “pure red meat for the base,” “a political stunt,” and “basically going to war against the state of California.”
Well, the war of words continues apace. And the Justice Department’s response to Brown, which DOJ spokesperson Sarah Isgur Flores shared on Twitter, was truly something to behold.
In fairness, the fact that Attorney General Jefferson Beauregard Sessions’ Justice Department opposes nullification is, perhaps, a sign that the Trump administration rejects some of the most radical voices within the Republican Party. That said, the idea that the debate over nullification — the erroneous theory that state lawmakers can invalidate federal laws within the state’s borders — was “settled at Appomattox Courthouse” is quite controversial among many of Sessions’ allies. In fact, that very debate only recently experienced something of a renaissance during the Obama administration.
Let’s attend to the highlight reel. In 2013, Alabama’s senate passed a bill purporting to declare all federal gun laws “null and void.” Kansas Gov. Sam Brownback (R) signed a similar bill into law. Energy Secretary Rick Perry (R), during his time as governor of Texas, signed a bill purporting to partially nullify — of all things — a 2007 federal light bulb law signed by President George W. Bush.
Flores’ statement, however, does not simply take an oversimplified view of American history. It suggests that the United States Justice Department either does not grasp, or is intentionally blurring, an important legal distinction.
Again, “nullification” refers to the theory that state laws can effectively invalidate federal laws by unilaterally declaring those laws unconstitutional. This theory is erroneous because it conflicts with two provisions of the Constitution.
The Constitution’s Supremacy Clause provides that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” Thus, if there is a conflict between a state and a federal law, the federal law must prevail. Meanwhile, Article III of the Constitution provides that “the 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.” So if a state believes that a federal law is unconstitutional, its recourse is to seek a court order striking down the law, not to simply declare the law unconstitutional on its own authority.
But more to the point, the pro-immigrant California laws challenged by the Justice Department are not acts of nullification and do not purport to be.
One of them withholds state assistance from federal officials seeking to enforce immigration laws — while fully permitting federal officials to enforce those laws on their own. Another provides certain limits on private employers who wish to cooperate with federal immigration officials, but that law also explicitly states that employers must still comply with federal government requests that are “required by federal law.” A third provision at issue in DOJ’s lawsuit merely instructs the state attorney general to inspect “county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.”
Historically, conservatives on the Supreme Court and within the legal profession have fought hard to maintain the distinction between unconstitutional nullification, and entirely constitutional state laws withholding state resources from the federal government. Indeed, a pair of Supreme Court decisions spearheaded by conservative justices established that states have an absolute right to refuse to cooperate with federal law enforcement.
Yet, while more sophisticated conservatives have carefully policed this distinction, the American right’s more radical elements have often sought to blur this line. The Tenth Amendment Center, which led many of those efforts to revive nullification during the Obama years (and who have clearly been operating under the assumption that the debate survived General Robert E. Lee’s surrender), labeled California’s 1996 ballot initiative legalizing medical marijuana “the beginning of the modern nullification movement.”
In reality, that initiative had nothing to do with nullification — it created an exemption to the state’s ban on marijuana use for a patient “who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician,” but it did not touch federal laws banning marijuana. In Gonzales v. Raich, the Supreme Court reaffirmed that, whatever the wisdom of a federal marijuana ban, the federal government does have the constitutional authority to enforce such a ban.
Nullificationists, in other words, have often tried to muddy the distinction between entirely lawful acts of state resistance to federal policies and unconstitutional acts of nullification. Doing so risks the lending credibility to nullification, by creating the false impression that states commonly engage in this practice or even that the Supreme Court endorses it.
And now the United States Justice Department is obscuring the same lines.