Friday, January 18, 2013

Rod Williams is right about the Supremacy Clause of the Constitution

by Daniel Horwitz

Daniel Horwitz

In response to Representative Joe Carr’s decision to introduce legislation criminalizing any attempts by Federal agents to enforce Federal bans on semiautomatic weapons or ammunition, Rod Williams offered a polite yet pointed criticism.  “I understand Joe Carr's fear that . . . the Second Amendment may be trampled upon, but I think his approach for dealing with this fear is the wrong [one].”  Williams wrote.  “I do not think we can ignore the ‘Supremacy Clause’ . . . and if I were in the State Legislature, I would not support Joe Carr’s legislation.” 

For this apparent transgression, Mr. Williams – an ardent conservative – has come under fire from some of the less-informed members of his party.  Said Glen Hughes, President of the Tennessee Republican Assembly: “He is being the happy democrat [sic] not letting facts and data stand in the way.”  Added Tami Kilmarx, former head of the Tennessee Tea Party: “That is what he does.  He works so hard keep everyone ‘informed’ with his dis-information campaign.”

To be clear, the fact that Mr. Williams was entirely correct in his critique of Representative Carr is not subject to debate.  As he properly noted in his post, the Supremacy Clause of the U.S. Constitution plainly states that “the Laws of the United States . . . shall be the supreme law of the land . . .  laws of any state to the contrary notwithstanding.”  In so many words, this provision of the Constitution (found in Article VI, Clause 2) means that whenever a state law conflicts with a Federal law, the Federal law takes precedence.  A provision of this kind, of course, is essential to a functioning Republic— if states had the power to decide whether or not Federal laws applied within their borders, there would be no reason to have Federal laws in the first place.  This would effectively render the Constitution “a solemn mockery,” Chief Justice Taney once wrote for a unanimous Supreme Court.  Moreover, as Stanford Law Professor and constitutional law scholar Jeffrey Fisher recently observed in response to asimilar bill that was introduced in Wyoming, the notion that Federal law trumps state law is one of the simplest principles in the entire Constitution.  “[T]hat a state cannot pass a statute that blocks enforcement of an otherwise enforceable Federal law,” notes Fisher, “is elementary.” 

Believing today that a state official can arrest a Federal agent for enforcing what the state’s legislators perceive to be an unconstitutional Federal law is every bit as dim as believing that a state court can overrule a decision of the Supreme Court of the United States.  This controversial theory – known in the literature as “nullification” – has a long and consistently unsuccessful history dating back to at least 1798, and has been rejected as a matter of constitutional law since 1809.  Crucially, attempting to nullify a Federal law is much different than simply refusing to assist Federal officials in its enforcement.  Pursuant to the “anti-commandeering” doctrine of state sovereignty, states have every right to stand on the sidelines and require that Federal officials do all the heavy lifting of enforcement themselves.  This is precisely the reason why states are permitted to legalize marijuana as a matter of state law, for example, and why this Oregon Sherriff’s refusal to enforce “[a]ny federal regulation enacted by Congress or by executive order of the President offending the constitutional rights of my citizens” is constitutionally permissible.  Actively obstructing a Federal agent from enforcing Federal law, on the other hand, is an excellent way to earn 8-20 years in Federal prison.

For anyone interested in the history of nullification, states’ alleged power to nullify Federal laws that they deem to be unconstitutional was first suggested by James Madison and Thomas Jefferson in the Virginia and Kentucky Resolutions of 1798 and 1799— only to be formally repudiated by ten other states at the time (and then Madison himself shortly thereafter, both as President and in his scholarly writings).  Vermont, for example, resolved that “[i]t belongs not to the state legislature to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union,” and this has remained the accepted view throughout all of constitutional history.  The theory of nullification was also rejected by Federalist Papers 33, 39, 44, 78, 80 and 82, which stand for the general proposition that Federal laws take precedence over state laws, and that the power to declare Federal laws unconstitutional is vested exclusively within Federal courts.  Additionally, viewed from the perspective of the Supreme Court, “judicial review” of Federal laws has officially been the law of the land since Marbury v. Madison was decided in 1803, states’ powerlessness to invalidate Federal decrees has been accepted doctrine since United States v. Peters was decided in 1809, and the fact that states cannot lawfully interfere with Federal agents while they are performing their official duties has been settled law since 1858, when in Ableman v. Booth a unanimous Supreme Court explained as follows:

>“If the authority of a State, in the form of judicial process or otherwise, should attempt to control [a] marshal or other authorized officer or agent of the United States, in any respect, in the [course of his duty], it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference.”  

Since these decisions, the only other genuine attempts at nullification that I can recall were southern states’ attempts to prevent school desegregation in the 1950s and 1960s (fail), and the Civil War.  No state’s attempt to nullify a Federal law has ever been successful, and in some instances – as in the Peters case, for example – the attempts have ended with the arrest of state officials.  Both today and throughout American history, it has consistently been understood that there is one and only one mechanism for invalidating a Federal law: appeal to the Federal judiciary for relief, and convince a Federal judge to strike the law down as unconstitutional.  As such, you can be sure that the only practical effect of Representative Carr’s proposal – if it ultimately passes –  will be the hefty litigation bill charged to Tennessee taxpayers when the constitutional validity of the law is successfully challenged in court by the Obama Administration.    

While Glen Hughes and Tami Kilmarx can be forgiven for their ignorance of the Supremacy Clause and of judicial review (they’re merely citizen-activists), Joe Carr cannot.  As an elected Representative, Carr took an oath to uphold the Constitution— and if I were one of his constituents, I would consider his refusal to comply with that oath to be every bit as disqualifying as his belief that women who have been violently raped can’t become pregnant.  Though I’m not unsympathetic to Carr’s zeal to protect the constitutional rights of Tennesseans, and though I'm something less than certain myself that all of the Obama Administration’s proposals will reduce gun violence (I’m not personally a gun owner, but I find concerns like these to be quite persuasive, for example), there is absolutely no excuse for disregarding the Constitution in order to score a few cheap political points.  As I have exclaimed repeatedly, constitutional governance is the essential foundation upon which our Republic is based, and at least to me, an elected Representative’s decision to disregard the force of the Constitution is unforgivable.  

Daniel Horwitz is a third year law student at Vanderbilt University Law School, where he is the Vice President of Law Students for Social Justice. He can be contacted at 

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