Last week while most continued to enjoy Christmas with family and friends, the Michigan state legislature enacted significant legislation. It nullified part of an act of Congress.
Michigan targeted section 1021 of the National Defense Authorization Act which provided for indefinite detention of US citizens. Governor Rick Snyder, while signing the legislation, noted that even a warrant for detention could not be enforced in Michigan. Supporters say that the Michigan legislation reaffirms both 5th Amendment rights of due process and 10th Amendment protections of state sovereignty.
This follows on the heels of a South Carolina bill annulling Obamacare within that state. It passed major hurdles this month and is expected to land on Governor Nikki Haley's desk in January. There is no doubt that she will sign the legislation.
Nullification has returned from the history books into the undercurrent of state politics. The doctrine originated with arch slavery defender John C. Calhoun, but was applied to a destructive tariff in the 1830s. Northerners resurrected the ideal while searching for ways to strike down the notorious Fugitive Slave Act in the 1850s.
It was never stricken down by any court of law or force of arms. Congressional action repealing the Tariff of Abominations in the 1830s placated South Carolina, which suspended the nullification acts.
The main obstacle to nullification lies in the Supreme Court case of McCullough v. Maryland. This case placed broad limits on the authority of well-established state governments to curtail the actions of weak federal agencies. After 200 years of federal growth and state weakening, cases arising from nullification acts may be vital to defining down this landmark ruling and carving out a stronger state position.
Acts of nullification generally attack federal authority assumed under the commerce clause. This covers anti-drug actions, the Environmental Protection Agency, and almost any other regulatory part of the Executive Branch. The Constitution states that Congress has the power to regulate interstate commerce and has adopted the broadest possible interpretation of it. Defining down this interpretation is also essential.
The year 2014 will start off with debt crises, foreign crises, and presidential speculation. Coming up fast, however, is the showdown between federal and state power.