Nullification: When States “Just Say No”

Governor Gary Herbert has a lot of power. If you don’t want Obamacare, ask him to tell the federal government to “take a hike”; we aren’t interested. The whole program is illegal and unconstitutional, anyway, and Governor Herbert, as Utah’s chief captain, calls the shots here in Utah. He can tell the feds to move on.

If you are incensed that the federal government illegally owns 2/3 of Utah, talk to Governor Herbert. He can insist they keep their promise to return our lands, which will give all of us better schools, better living, and more money.

If you chafe under illegal immigration, Governor Herbert is still your man. While he isn’t in charge of immigration, the federal government is negligent and we are being invaded. He can insist they act, or lead the state into action if the federal posse fails to show.

The governor, with the state legislature, has the duty to insist that the federal government keep the law. Thirteen states created the Constitution and federal government, so they are “the boss”; they wrote the laws. The federal government’s job is to follow them.

The Founders knew something like this would happen, so they built disciplinary tools into the Constitution. Nullification—the duty of a state to say “NO” to the federal government when it breaks the law—is one of them. Elections are another. While states cancel illegal federal actions, voters hand eviction notices to elected officials who permitted the problem. Nullification is not rebellion or secession, as some claim; it is a safeguard of the Constitution.

Nullification is not new. In 1798 our infant Congress passed, and President John Adams signed, the Alien and Sedition Acts, which made it illegal to speak out against the government. Stunned at this federal abuse of the First Amendment’s freedom of speech, James Madison and Thomas Jefferson taught nullification to Virginia and newly-admitted Kentucky. This set the precedent and pattern for state nullification that brought down the Alien and Sedition Acts. Jefferson coined the term and called it “the rightful remedy” to end federal illegalities.

Some of the Founders protested. America was learning how to make the Constitution work in real life, and every new challenge set future patterns. George Washington, in his Farewell Address, explained, “…remember that time and habit…fix the true character of governments…experience is the surest standard by which to test…the existing constitution of a country…”

Governments will gobble up power if they can. They are like spoiled, petulant children who throw temper tantrums for more. The states created the federal government; they are the parents, the federal government is the offspring. Like all good parents, the States are to resist tantrums and sly mischief while they insist on obedience.

Today, we have role reversal—we have let the undisciplined child take control. While states, like parents, are far from perfect, they are still the best restraint for the federal government. Utah baby-stepped in the right direction in 2010. We blazed the constitutional trail back to a sound economy by acknowledging gold and silver as useable money within the state. Twelve other states have followed. More work remains for the governor and legislature, backed by Utah citizens who stand firm.

It will not be easy. Like a stormy child, the federal government can get its hackles up and withhold federal funds. It takes real “guts” and determination to hold to what’s right, as any parent of a flailing child knows.

Rep. Ken Ivory, R-West Jordan, made an interesting statement some while back that illustrates Governor Herbert’s position. He said. “It’s a lonely thing to be a governor. You stand isolated at the top of the state, with forces assailing you on every side to win favor for their position. The governor needs to hear from us—not just when we don’t like something, but also when we do. We need to tell him what he has done well.”

We can encourage Utah officials to resist the heavy federal hand. If we are willing to sacrifice, we can rebuild the freedoms of 1787. While we encourage Gary Herbert to take a hard stand, let’s also give him a hand when he does.