It is absurd to argue editorially that nullification is “clearly unconstitutional,” as you have said about the S.C. Legislature’s effort to nullify Obamacare.
The Constitution’s supremacy clause says that laws “in pursuance” of the Constitution are supreme, but the whole point of nullification is to deal with laws that are not so drawn and in fact are unconstitutional. It is those that a state might try to nullify, with particular appeal to another part of the Constitution, which says flatly that the powers not explicitly delegated to the national government “are reserved to the states.”
Nullification has been practiced many times without legal challenge, from the 1798 resolutions of Virginia and Kentucky (written by Madison and Jefferson), to the nullification in 1809 by three New England states of Jefferson’s embargo of foreign trade, the resistance to the 1828 and 1832 “Tariff of Abominations” by several Southern states (including South Carolina, which voted in 1832 to nullify it), Wisconsin’s nullification of the Fugitive Slave Law in 1859, and in the last decade alone by more than half the states.
No, recent actions have not generally been labeled nullification, but that is exactly what they were. More than half the states have refused to go along with the federal Real ID Act of 2007, nine states have nullified the federal Defense of Marriage Act and allowed same-sex marriages, 15 states have nullified the Controlled Substances Act of 1970 by allowing various uses of marijuana (and 12 other states have similar acts in their legislative pipelines), and North Dakota voted in 2011 to nullify the Obamacare Act (though it has subsequently accepted it), 26 states have refused to set up “exchanges” under that law, and seven have nullification proposals in their legislatures now.
So far, the feds have not challenged any of these nullifications in court, obviously because they have no legal leg to stand on, and so at the moment there are nullification bills proposed in most states of the Union, including 25 against federal gun control, 14 against drone strikes and others for gold and silver as legal tender, Tenth Amendment recognition, National Guard protection and sheriff primacy over federal lawmen.
So, far from being unconstitutional, it seems to be quite a popular remedy for an overreaching and intrusive federal government.
Oak Tree Lane