A frontpager yesterday talked about the nullification initiative in the AZ Senate.
While I more than agree on the importance of the matter discussed, I think that the author takes a wrong turn in characterizing this effort as a move towards secession. It may be rhetorically effective, as a form of invective, to tar these people with the brush of something as deeply discredited as secession. But understanding what they are up to, in my mind, easily takes priority over insulting them. And we risk misunderstanding the most dangerous possibilities inherent in the ideas the AZ Senate is playing with if we imagine that they are up to some secessionist gambit
Accept it or (hopefully) reject it, you should understand what the Tenthers believe.
According to their way of thinking, the 10th cannot mean simply that states can claim before the federal courts that a particular assertion of power by the Congress exceeds their authority and encroaches on some power reserved to the states.
Partly, they argue from logic. If that's all the 10th means, it means nothing, and the Founders could not have meant nothing by it. Every entity -- individuals, corporations, cities, counties, states -- whose interests are at all affected by a federal law can claim in court that that particular federal law exceeds the powers granted to Congress under the Constitution, and if their argument carries, the law is invalidated. The states don't need the 10th to give them a right to challenge the constitutionality of federal laws in the federal courts. The 10th has to mean that the states and "the people", collectively, have powers, not just rights, that the federal govt as a whole, including the federal courts, cannot abridge. For it to mean less is for it to mean nothing.
To flesh out what it means to have states assert their power under the 10th, we can turn to the historical record of state interposition and nullification, which is their second line of argument. When KY and TN nullified the Alien and Sedition Acts, none of the founders disputed that, however they disagreed with TN and KY nullifying these acts of Congress, it was in their power to do so. Even the Adams adminstration did not attempt to enforce the laws within the borders of those states. It did make this attempt, with varying success (some of its judges were run out of towns on rails), within states that had not nullified, but where it was some local govt, or grand jury, that defied the federal govt. It was understood that the states, and the states alone, had this power to set aside the Supremacy Clause.
What happens when a state or group of states assert this power to set aside a federal law, is that it assumes the position of an independent sovereign state in respect to the federal govt. It needs to be bargained with, much as the federal govt negotiates with foreign powers, up to and including that "extension of diplomacy by other means", war. The Adams administration was in no position to credibly threaten war with KY and TN, as the weak standing federal army would surely have lost a war with those states, and there was no way that even New England would have been willing to vote funding to raise an army for that purpose. Jackson had a more favorable military and political situation when he had to face down SC's nullification of the "Tariff of Abominations". He was able to get a Force Bill through Congress to raise an army to invade SC. But he was compelled to negotiate as well, with the threat of invasion largely just a means to get favorable terms from SC. In the end, a peaceful settlement was reached, under which SC repealed its Act of Nullification in exchange for a less abominable tariff from Congress.
The key point here is that no one, not even Jackson, not even Madison (who had supported the KY and TN nullification, but was opposed to SC's), thought that a dispute created by a state nullifying a federal law could be settled by the federal courts. Those courts are part of the federal govt. Of course they can't be a judge in their own case, and issue injunctions to state govts to stand down from assertions of their sovereignty.
Such is their theory. I am not a constitutional lawyer, and have no idea if any case law since 1832 has in any way addressed these "cases" (which never became legal cases) of assertions of the 10th from prior to 1861. You tend to hear people engage in a lot of hand-waving on this point, with statements to the effect that the issue of nullification and divided sovereignty, however much it might have been original intention, was somehow settled in the negative on the battlefields of the Civil War. Well, while I find Tentherism fairly appalling, I think that such an argument manages to be more appalling still. I wasn't aware that we changed the Constitution by killing people.
I suspect that there isn't any jurisprudence on this topic for the same reason that the non-seceding states failed to amend the Constitution after the Civil War to close all the doors to secession, all the assertions of divided sovereignty. The winners were in no state of mind to abandon the ideological overkill in which it did not suffice that seceding to preserve slavery was supid and evil enough to be by itself a sufficient indictment of the act. Secession itself had to be unconstitutional. To repeal the 2d and 10th amendments, and Art IV, sec 4; would have been to admit that the South had a right to secede. And so we still have the doors to nullification, the assertions of divided sovereignty, intact in the Constitution.
If nullification has been a joke since 1865, it's because the correlation of military forces has made any assertion of state sovereign independence from the federal govt untenable. States have no position of military strength from which to bargain with a federal govt they have defied, so it makes no sense to assert their independence. When states have passed acts of nullification in this past century, as many did as the federal govt got serious about ending Jim Crow, they have taken no steps thereafter to actually block enforcement of the federal laws they supposedly just nullified. These nullifying laws were pure theater, like the governors standing in the doorways of schools who would back down when the Federal marshals or the 82d Abn showed up. The idea was that trampled rights were only yielded to superior force.
The practical question -- call it the lab component of Tentherism 101 -- is whether these latter day moves towards nullification are anything more than just another farce, a show playing to their gallery. To believe that they aren't, that the Baggers actually have anything substantive in mind with these moves towards nullification and interposition, you have to believe that they have some plan for the nullifying states to do something to follow up an act of nullification by doing something to block enforcement of the nullified laws in their states. What could they do to block enforcement?
Sure, they would lose a war with the US Army, so that would seem to rule out blocking enforcement with the armed might that these states could reasonably be expected to muster. But that assumes that they US Army would obey orders to fight any opposing state forces. They're way ahead of us on chipping away at that assumption. That's exactly what the Oathkeepers are all about.
Of course, one way to consider the Oathkeeper movement is to think of it as some sort of ideological cover for the practical process of disintegration of the US Army that took place as the Southern stares seceded in 1861. The Army of that day, not very large or impressive to begin with, mostly just melted away, as officers and enlisted went over in droves to the other side. Buchanan is often blamed for not doing much to stop secession, but there wastn't much at hand in the way of tools for him to do much with.
Of course, that was after a generation of a worsening sectional conflict. We haven't had that in the run up to these latest nullfication antics. The US Army just melted away in the face of seceding state forces because the nation had reached a point of seeing the conflict between Slavocracy and Abolitionism as apocalyptic, and soldiers form the South were likely to think that refusing to fight against their side was a cause fully justifying mutiny and desertion. It's hard to imagine today's US Army melting away if sent to make AZ follow provisions of the ACA. The ACA is hardly slavery. Most Americans don't see it as either apocalyptically evil or the mandate of heaven, the focus of an irrepressible conflict.
The Oathkeeper thing is much more likely to have any effect at all if it acts in synergy with measures the nullifiers could take that stop short of active, armed resistance. The ACA is particularly vulnerable to passive resistance by states, because they have to take an active role in setting up the exchanges that are such an important feature of the act. It's one thing to send in the 82d Abn to clear a governor out of a school doorway, and they go back to their bases the next day; and quite another to have them indefinitely running AZ's health dept because the govt of AZ has sent all the state employees home to keep them from implementing AZ's part of the ACA, for which AZ hasn't provided funds or necessary enabling legislation anyway.
But the greatest Achilles heal for any attempt by the federal govt to impose its will on nullifying states that try passive resistance would be our current federal bench itself. I'm not sure that even if we had federal courts as willing as those in the Warren era to apply often novel injunctive remedies against the claimed states' rights to impose Jim Crow, that there are such remedies possible to cover all of the things that AZ could fail to do, could refuse to do, to frustrate the will of the federal govt. But, of course we don't have federal courts today whose will to uphold the Union against states' rights can be taken for granted. The other side has been assiduously packing the courts for a generation with Federalist Society original intentionalists. Maybe their original intentionalism is just theoretical hot air. But if it isn't, now would be the perfect time for them to start repaying the conservative movement's considerable investment in them by discovering the original intention goodliness of a bit of state nullification.
Passive resistance by the govt of nullifying states, backed by court rulings that turn back the clock to 1830 in respect to state nullification and refuse to provide the federal govt any injunctive relief in enforcing the law, with the occasional act of Oathkeeper insubordination as icing on the cake -- a Tenther state or states could accomplish a lot more than just political theater.
Make no mistake, any reasonable prediction about what is going to come of the AZ Senate's flirtation with state nullification should lean heavily on the observed past behavior of our political class. These people have been cautious to a fault for decades, and the power of inertia over human affairs should never be underestimated. If inertia holds sway, if the AZ Senate, and the rest of the Right's officeholders, end up behaving in the conventional and expected way, however revolutionary their rhetoric, then this will all end up being just theater for their peanut gallery.
So take this as some thinking about worst-case scenarios, what vulnerabilites there are in our system, including that overly cautious nature of our politicoes, that genuine radicals could exploit if they were in the Right's position. And the worst case here in the matter of state interposition and nullification isn't secession. They would lose that war, quickly and overwhelmingly, and consequently without much death and destruction on any side. That loss would not necessarily be such a bad thing.
Maybe in 1861, these people, or rather their spiritual forebears, wanted to secede, wanted to just be out of the Union, and just be let alone by the United States. That's not what they want today. They want to control the Union, not leave it. They want to impose their way on the rest of us, not be left alone by the rest of us.
Nullification without secession would be a powerful tool for them to have in their toolbox as they seek to control the federal govt. They would be able to make any govt program they don't like become unworkable by seceding from just those programs, but remaining in the Union to insure that these programs aren't put in place anywhere in the US. If the federal govt is stripped of injunctive remedies by federal courts no longer willing to set the 10th aside off in the basement with the crazy aunt, then it's only enforcement tool becomes sending in the Army. The Right might do this when a Republican is president, but our side never will. Not that Blue states would use the forum shopping opportunities provided by divided sovereignty to nearly the extent that Red states would even if fear of federal troops were not a factor.
The end result would be a federal govt that would grow without limit to do things the Right wanted done, but wilt away to nothing where only our side wanted it to do something. The Right would win every political fight by appealing the cause to whatever fragment of our divided sovereignty they controlled at the moment. It's their modus operandi already. State nullification would just allow them 50 more forums in which to shop for the one that will block whatever they want blocked.