What can be nullified?
The federal usurpations that are
susceptible to state-led nullification
Austin Constitution Meetup
August 23, 2010
Led by Jon Roland
Alleged authority for usurpation
Impact on people
Co-operation at state level required
Intervention points available with and without
Nullification Commission (NC)
Some historical examples
Alien and Sedition Acts 1798
South Carolina v. Tariff 1832
Fugitive Slave Acts ~1850-61
Resistance to Prohibition 1919-33
Medical marijuana (MM) (current)
Requires states to issue driver licenses and state
ID that conform to federal requirements for
centralized identification, without funding
Alleged authority is to withhold entry into federal
facilities and onto commercial aircraft to those
not having the ID
Alleged authority to control aircraft based on
Commerce, Necessary & Proper, Wickard.
Resistance to RealID
Many states refusing to fund compliance, but
some are complying
Feds hinting at withholding funds to states for
other purposes unless they comply, taking
advantage of economic distress
But lawsuits blocked by lack of standing
Act still on books but too many states blocking
compliance, so it is in legal limbo
RealID if had NC
Citizen could have complained to NC before
RealID Act passed.
NC would not find Act null if not passed yet, but
could conduct hearings, call witnesses.
Proponents would have to confront opponents in
NC hearing in different way than in stacked
committee hearings of Congress.
Faced with likely nullification, Act would likely
have been withdrawn.
Medical Marijuana (MM)
Illegal under federal acts, based on Commerce,
Necessary & Proper, Wickard.
Some states legalized under their own laws.
When feds prosecuted for what state authorized,
juries refused to convict.
Feds decided to stop prosecuting in those states,
but still can.
NC would have gotten that result faster.
Health Care Act (HCA)
Mandates people get health insurance or pay fine.
Some proposed state legislation blocking
collection of the fines.
But IRS may not file liens or take collection
actions for fines, so fines to block.
However, IRS can deduct fines first, then charge
people for not paying taxes.
So is state going to block income tax collection?
Income Tax & the NC
Citizen could complain Federal Income Tax on
Labor (FITL) unconstitutional.
NC could hear issues in ways Congress and the
courts refuse to, and find it unconstitutional.
IRS files liens with state court clerks, which NC
State agencies and contractors withhold taxes,
which NC could block.
IRS attaches money from bank accounts, but NC
could have state bank charters suspended.
NC could encourage juries not to convict, but IRS
still has civil actions.
IRS gets your money, then makes you sue them to
get it back, with a jury possible but blocked.
Without NC, cannot afford the cost of suit, but
NC could authorize paying attorneys for that.
The FITL is not one of the first usurpations the
NC should tackle.
It could hold hearings, but defer the finding,
putting pressure on Congress to replace the FITL.
Hearings would provoke public discussion, and
lead juries to refuse to convict even without the
Without criminal convictions, collections would
Federal education funds
Mandates depend on accepting federal funds.
State standards higher than federal in areas like
NC could find federal funding only valid for
Teacher unions could decide whether they want
to train warriors and enforcers of the Constitution.
Feds and state differ on standards.
Fed EPA based on Commerce, Necessary &
NC would make businesses choose between State
and EPA, line up their support for State.
Most federal enforcement administrative, so
juries don't get to decide, except for criminal
Gun control 1
Alleged authority for NFA 1934 was Tax Clause,
for GCA 1968 was Commerce, Necessary &
Some states have advanced legislation to exclude
intrastate firearms from federal regulation, but
feds can just ignore that and prosecute in their
States could refuse to disable RKBA for convicts,
but feds don't recognize that as standard.
Gun control 2
States could license intrastate firearms dealers,
not required to be federal dealers, setting up
conflict like that for MM.
NC could find lack of militia unconstitutional,
and all noncriminal citizens law enforcement
agents, which would make them all “peace
officer” exceptions to federal statutes.
NC could encourage juries not to convict.
Citizen complaint to NC could bring finding that
only gold & silver are legal tender within State.
State would then have to tax and spend only in
gold and silver, not in Federal Reserve Notes
Civilians would then start demanding debts be
paid in gold or silver.
Feds would become isolated into a FRN zone
while the rest of the country abandons FRNs.
But taking on entire monetary system at once
Better to take up complaint from one citizen that
Federal Reserve Bank won't redeem a $1 bill for
silver, threaten to withhold cooperation on
something, until fed relents.
Then do it for a $10 bill, etc., with much fanfare,
until politicians begin to see where it is going.
• Not all federal usurpations are readily
susceptible to state-led nullification.
• The most susceptible are those that require the
cooperation of state agents.
• State-led jury nullification can work for some,
but not all federal actions submitted to juries.
• For some usurpations, the best that can be done
is declaratory, throwing the issue to the people
of other states and the political process.