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Mainstream Media Gets the Supremacy Clause and Nullification Wrong. Again.

April 30, 2017

Mike Maharrey


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Last week, an Associated Press reporter interviewed me about a Texas bill that would set the stage to withdraw state resources from some federal actions. The article came out this week and my quotes in the story served as a life raft in a sea of federal supremacy.

Texas House Bill 2338 would create a mechanism to review federal laws and end state cooperation with enforcement of those determined by Texas to violate the U.S. Constitution. The proposed law would establish a standing committee to review federal actions and determine their constitutionality. State and local entities would then be prohibited from enforcing any federal laws, agency rules and regulations, executive orders, federal court decisions, or treaties deemed unconstitutional through the process. The proposed law would also ban expenditure of state funds to enforce such federal actions.


Here’s my brief summary of the AP story written by Meredith Hoffman.

Federal supremacy – federal supremacy – federal supremacy – I say some stuff that’s right, but it’s buried near the end of the story. A Legal expert agrees with me on anti-commandeering…but then says some stupid trash.

Overall, Hoffman was pretty fair in her reporting. In fact, it may be the most balanced mainstream media report on a nullification bill I’ve ever read. (I know that’s not saying much,)

While it was far better than most, I did have one major beef with the way she framed the story.

“A proposal in the GOP-led Legislature would allow Texas to ignore federal law and court rulings and forgo enforcing national regulations. Arizona already has approved a similar policy, and other states want to follow suit, despite the Constitution’s Supremacy Clause, which stipulates federal laws and treaties take precedence.”

Here we find the ubiquitous twisting of the supremacy clause, leaving out the key words “in Pursuance thereof.”

“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.”

Not just any old law Congress wants to pass. Not just any pronouncement uttered by the person sitting in the Oval Office. Not just any order issued by a federal judge. Only federal actions “in pursuance” of the Constitution stand supreme.

As Alexander Hamilton put it, ” every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void.”

Hoffman asserts the federal supremacist worldview as undisputed gospel.

To some degree, I really can’t blame her. She’s been steeped in federal supremacy since childhood. We didn’t get into supremacy during the interview, as I focused exclusively on the anti-commandeering aspect of the bill. But it does strike me as sad that unlimited federal supremacy is just a given in modern American thought.


The first character to make an appearance in the story (after Hoffman explains the bill and provides a quote from the sponsor) is Rep. Chris Turner, a Democrat who appears not to even understand the bill.

“It proposes a structure for state nullification of federal laws which is clearly unconstitutional,” said Turner.

James Madison and Thomas Jefferson disagree with Turner’s assessment of the constitutionality of nullification. In fact, even the Supreme Court affirms the constitutionality of this particular approach to nullification. The Court has held since 1842 that the federal government cannot force states to use personnel or resources to enforce federal laws or implement federal programs. It’s called the anti-commandeering doctrine.

In practice, the criteria the state uses to review federal acts don’t matter. The fact that the proposed law would use a state determination of constitutionality to decide which federal acts the state will refuse to participate in isn’t really relevant. The state could decide it doesn’t want to use its personnel and resources to enforce any federal acts passed on a Wednesday if it wanted to.

After some information about other states that have considered bills to review and reject federal law, Hoffman gets to my discussion of the anti-commandeering doctrine. Like I said in my previous article about the interview, I’m pretty certain I bent Hoffman’s frame when I led off explaining how bills pending in California and New York to create so-called immigration “sanctuary states” rest on the exact same legal principle as HB2338. I give her kudos for including this in her article and providing a solid explanation of the anti-commandeering doctrine to her readers – demonstrating that “nullification” isn’t just about gay marriage, and it isn’t just a partisan issue – assumptions I suspect she held going into the story.

Maharrey, who has recently seen a flurry of such legislation, said it’s grounded in anti-commandeering doctrine, meaning the federal government cannot force states to use their resources implementing federal programs. It’s also been used by blue states to promote things such as “sanctuary city” laws excusing police from enforcing federal immigration law.

“There are a number of bills based on this same concept, including bills pending in California and New York legislatures to create state sanctuaries,” Maharrey said.


Enter our constitutional law professor. Every story I’ve ever read about nullification from a mainstream news source features one of these academic federal supremacists to provide the “final word.” In this case, Hoffman delivers up Sandy Levinson, a University of Texas professor specializing in constitutional law.

First the good – Levinson affirms the anti-commandeering doctrine saying states have the right to refuse to cooperate with the federal government by reserving resources.

From a practical standpoint, that’s all that matters. That’s the primary function of the bill. And Texas can prohibit participation and state resources whether a federal act is constitutional or not. That debate is really beside the point.

But Levinson goes on and trots out the absurd notion that only the federal government can determine if the federal government has exceeded its power and authority, saying the only way Texas can contest the constitutionality of a federal law is to sue.

“What would be special is if the Texas Legislature really and truly believes that Texas can decide on their own, ‘this is unconstitutional we’re not going to do it,’” Levinson said. “That’s just bonkers.”

Well apparently, Sandy, James Madison was “just bonkers.”

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them [the Constitution] be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”


All in all, this was actually a pretty fair article considering the subject. Nobody called supporters of nullification racist. Nobody invoked the Civil War. I was able to make it clear that nullification was a tool being used today by both the left and the right. And we now have full acceptance of the anti-commandeering doctrine – even from the federal supremacist “expert.”

You may read the article and cringe. But it’s a lot better than it used to be!


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