Federal action against coal operations in West Virginia has put hundreds of men and women out of work and denied the state its share of potential revenue. The Environmental Protection Agency has initiated a War on Coal to destroy mining operations. Right before Christmas, an EPA action resulted in the layoff of five hundred in Clay County.
What can the State of West Virginia do in response?
This may seem painful, but a way might exist to constitutionally void federal regulations. That is nullification.
Nullification doctrine first emerged in the 1830s from the mind of John C. Calhoun of South Carolina. Federal import taxes raised prices on manufactured goods, crippling farmers. Calhoun suggested that the state legislature pass an ordinance nullifying the tariff within the boundaries of the state. President Andrew Jackson met this action with a military deployment. Since then, nullification of a law passed by Congress has been seen as unconstitutional.
What about state legislative nullification of a federal agency regulation or executive order? The Constitution does recognize Congress's right to pass binding legislation. It does not recognize regulatory law or presidential executive orders. State governments are under no obligation to abide by these so called laws. In fact, the Tenth Amendment protects states from many of the laws that Congress uses to bind their actions today.
All states have to do to regain their sovereignty is to swear off of federal funds for anything. At that point, Congress has very little authority over what a state can or cannot do. West Virginia cannot arrest federal officials inspecting or making reports, but it can pass acts preventing the enforcement of executive branch regulations. Swearing off of federal funds does mean a huge drop in money for roads, schools, and other items. However, the drop in money is offset by the fact that the state no longer would have to spend countless resources on paperwork and unfunded federal mandates.
Nullification is a last ditch tactic because it will provoke a serious contitutional crisis. Thousands will gather soon in Austin, Texas to ask their governor to do that very thing. In the name of freedom, strong steps may have to be taken. The election of 2010 will go a long way towards moving back to a Republic, or forward to crisis.