Tenth Amendment Center: Misapplying the Supremacy Clause

From Tenth Amendment Center

...from Tenth Amendment Center

The following post is excerpted from the script for Nullify: Season 1. Watch all the videos from this series at this link – and Become a member here to support the TAC.

If you discuss a state bill contrary to federal goals, some will claim it’s unconstitutional with just two words: “Supremacy clause.” But in many situations, the clause doesn’t even apply.

The original meaning of the Supremacy clause tells us that state laws must generally yield to conflicting federal laws made in pursuance of the constitution.

Even so, out of the hundreds of nullification bills filed in states in recent years, the supremacy clause only applies to a small handful.  The rest generally prohibit the use of state resources to enforce or effectuate federal laws and the supremacy clause doesn’t even apply.

Here’s the deal.

The feds have overextended themselves. As the National Governors Association pointed out, they rely on state-level support or enforcement to carry out “most federal programs,” So most modern nullification bills use the strategy of withdrawing support for them.

This is the strategy advised by James Madison and backed up by over 170 years of Supreme Court precedent holding that the federal government cannot require states to use resources or personnel to help the feds carry out their programs.

Known as the anti-commandeering doctrine, states can simply stop participating and leave enforcement to the feds, who don’t have the manpower to get the job done in the first place.  When states use this strategy, there’s simply no possibility of a supremacy clause conflict.

Think of it like a boycott.  

A store can’t stay in business if people don’t shop there. But the store can’t force anyone to shop there either.

Today, most federal programs can’t stay in business without help from the states, and the supreme court has repeatedly supported the Constitutional framework that the feds can’t force the states to help them either.

It’s the federal government’s own problem that they’ve set up programs that rely on help from states to implement.

Refusing to help the federal government is smart strategy – it’s constitutional, it’s an easy legal argument, and it works.

Michael Boldin
September 22, 2017 at 12:05PM