Michigan the Latest to Chip Away At Federal Supremacy

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.

Has the Federal Government Inadvertently Set a States' Rights Precedent? Delegates Sobonya and Cowles Think So

Since 1819, McCullough v. Maryland has served as the law of the land.  At that time, state governments exercised more power and held more credibility than the still infant federal government.  Chief Justice John Marshall and the Supreme Court sought to bolster the federal government's position to prevent disruption from jealous states.

Marshall wrote the opinion broadly enough so that it legally prevented any state from officially acting in contradiction to any federal policy or agency.  State police cannot even legally pull over a federal vehicle that is speeding.

Obviously this decision came in the context of its times.  The federal government was very small and claimed few powers.  Some of the states had existed for almost or over 200 years as political units.

Delegates Kelli Sobonya (R) Cabell, and Darryl Cowles (R) Morgan, think they may see a breach in the iron wall of McCullough.  

In a recent Legislative committee meeting on medical marijuana covered by the Charleston Daily Mail , Sobonya queried about the inconsistent enforcement of marijuana laws by the federal government.

If Sobonya and Cowles are right, then the Obama Administration may have opened the door to states ignoring laws that they find onerous to their citizens.  EPA regulations and Obamacare were cited by the delegates as examples.

Delegate Gary Howell (R) Mineral later noted "civil society depends on rule of law.  You can't just have the president and his political aides pick and choose what to enforce.  Then we have a government of men, not of laws, which John Adams saw as a prime threat to liberty."  He also SAID that the inconsistent enforcement could set a precedent where states can legally defend their own interests.

It should be noted that no court or statute has ever refuted the Virginia and Kentucky Resolutions penned by James Madison and Thomas Jefferson.  If the federal government violates the Constitution, according to Madison in the Virginia Resolution, "necessary and proper measures" must be taken to protect the people's rights.    Madison never specified what those ought to be.  At the very least, it would seem that Virginia, Kentucky, and West Virginia can refer to these works as grounds of legal argument.

Post Script:  Full disclosure.  I support legalization of medical marijuana.  Frankly those who support it should take more issue with the Obama Administration's non enforcement than with either enforcing or getting rid of the law.  By not enforcing the law, Obama is allowing businesses to grow.  Those businesses will always be subject to legal extortion by the federal government because the law can always be held over them as a Sword of Damocles.