Nullification: How Local Government Can Stop Government Overreach

Photo by Kyle Mills on Unsplash

I have often discussed the importance of paying attention to local politics. Throughout my career as a commentator – even before I went the liberty route – I constantly taught my audience about why their city and county politicians have more of an impact on their lives than those who walk the halls of Congress and the individual who occupies the White House.

There is a myriad of reasons why this is the case. For starters, look at the issue of education. Congress can pass laws related to education. The Department of Education issues guidance to the states. Your governor and state legislature also make laws related to how children are to be educated. But it is your school boards that tend to make the most pressing decisions on how school districts should function.

What about law enforcement? The federal government currently has over 60 law enforcement agencies. States also have police that deal with crimes that occur on a statewide level. But if you ever experience abuse at the hands of law enforcement, chances are, it’s a local cop, not an FBI agent. For these reasons, and several others, your mayor, city council, sheriff, are most important.

But another critical reason why it is important to pay the most attention to local politics is that your elected officials are also supposed to protect you from overreach perpetrated by federal and state governments. When these entities impose rules, mandates, or laws that violate your constitutional rights, your local government can work to nullify these state excesses. This is where nullification comes into play.

To put it simply, nullification is a legal doctrine that asserts that states and cities not only have the ability to invalidate unconstitutional laws, but also the duty to do so. They can do this by refusing to enforce these laws and refraining from working with federal agencies to this end.

An example of this would be laws prohibiting the possession of marijuana, which is illegal according to federal law. Yet, numerous states like California, Colorado, New York, and others have decriminalized weed. Their state governments are essentially refusing to go along with the federal government’s approach to the issue. The fact that national government has not yet decided to press the issue makes it easier for these states to make their own decisions regarding how they deal with marijuana.

Another example of nullification occurred during the COVID-19 pandemic when states issued onerous lockdown orders and forced Americans to stay at home. Some states even employed mandates determining the number of people a family could have in their home at any one time. But there were several sheriffs who pushed back against these unconstitutional measures by refusing to enforce them. Sheriff Mark Lamb in Pinal County, Arizona was one such official. Despite the barrage of criticism he received from the pro-lockdown crowd, he refused to punish Arizonans for violating these rules.

Nullification as a practice dates back to the late 18^th century, when people like Thomas Jefferson and James Madison suggested it as a way to mitigate unconstitutional overreach by the federal government. Jefferson referred to it as “the rightful remedy” to a state that has overstepped its Constitutional boundaries. Madison argued that the state is “duty bound” to “arrest the progress of the evil.”

During the Virginia ratifying convention, George Nicholas asserted that if Congress were to exert authority that was not expressly granted to it by the Constitution, Virginia would be “exonerated from it,” meaning it could ignore or block these laws.

The Tenth Amendment Center explains:

“The federal government involves itself in almost every aspect of life, but depends on state assistance to do almost everything. If states refuse to help, it becomes nearly impossible for the feds to enforce their laws or implement their programs. We can use this strategy to undermine and nullify all kinds of federal acts in practice – from warrantless spying, to gun control, to plant prohibition and more.”

Between 2010 and 2016, there were about 1,500 legislative proposals put forth by states that invoked nullification principles to push back against federal statutes. These proposals ran the gamut ideologically, with resistance to the Affordable Care Act and other left-wing endeavors. But there were also laws to oppose policies that allow for the militarization of the police, which is associated more with the right.

States and cities can use nullification to prevent unconstitutional laws from violating our rights. For instance, fight back against the government’s ongoing effort to disarm law-abiding citizens, some cities have declared themselves Second Amendment sanctuary cities. These local governments adopt resolutions declaring that strict gun control laws violate the Constitution and that the city’s law enforcement agency will not enforce them. Second Amendment sanctuary cities have become a trend over the years with over 1,200 jurisdictions in 37 states adopting such resolutions.

But in order for nullification to be an option, a city must have the right officials in place who would be willing to employ these strategies to prevent overreach at the federal and state levels. This is why it is so important to focus primarily on who we are electing in our local offices and why we must make sure we are intimately involved in our communities. For this to work, it will require enough people occupying mayor, city council, and sheriff positions who understand that their role is to protect our Constitutional rights – even from state and federal government. Only then can we begin to build a society based on liberty.

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This is one of several issues I will discuss in my upcoming book “Chasing Liberty: A Journey from Partisan Politics to the Fight for Freedom.”

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