Meet The New Nullification, Just as Unconstitutional as the Old Nullification

One of the more disturbing developments of the last two years is the reemergence of nullificationism, the unconstitutional notion that states can invalidate laws that they don’t like, among conservative lawmakers and activists. Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA) each signed obviously unconstitutional laws claiming to nullify the Affordable Care Act. A few right-wing politicians have even embraced the views of Tom Woods, a pseudo-historian and co-founder of a neo-Confederate hate group who once wrote that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

The only problem for these would-be John C. Calhouns is that the Constitution expressly rejects nullification, but that hasn’t stopped them from dreaming up increasingly creative theories for how states can ignore the Constitution’s express command. As Dave Weigel reports, the latest such theory comes from former Texas Solicitor General Ted Cruz. The Constitution permits states with the consent of Congress to form contracts with each other — a power that Cruz somehow interprets to allow the states to bypass Congress and the President altogether:

Interstate compacts are an effective way to regulate areas of mutual concern among two or more States. In areas of overlapping state and federal jurisdiction, or where state legislation is preempted by an enumerated federal power, the Constitution requires congressional consent (Art. I, sec. 10). The Supreme Court has held that such congressional consent trumps prior federal law and may even subordinate federal agencies to agencies created by the interstate compact. Although Congress has generally consented to interstate compacts through regular legislation signed by the President, congressional consent does not necessarily require presidential signature; the Supreme Court has suggested that congressional consent may even be inferred from acquiescence. . . .

We propose an interstate compact to create an alternative state-based regulation of health care. The compact would provide that member States are free to choose their preferred model for health care policy; that they may opt out of Obamacare entirely . . . .

Cruz is actually a pretty good lawyer, so it is deeply embarrassing that he would sign his name to proposal that is so riddled with errors. Contrary to Cruz’ implication, an interstate compact cannot be used to bypass the President’s veto power. As Article I of the Constitution provides:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Likewise, the claim that “congressional consent may even be inferred from acquiescence” is simply false. Under the Supreme Court’s decision in College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., “[s]tates cannot form an interstate compact without first obtaining the express consent of Congress.” (There is some very old precedent suggesting that Congress’ consent may be implied when it specifically references a compact in a law that carries that compact into effect, but such a law goes a lot further than mere “acquiescence.”)


Ultimately, it’s hard to read Cruz’ claim to the contrary as anything other than another example of conservatives trying to ignore the actual Constitution and replace it with the one that they want.