How States Should Push Back Against the Biden Administration

March 14, 2021 Updated: March 21, 2021

Commentary

The Biden administration began overreaching on its first day. It has this in common with every Democratic presidency and congressional majority in recent history. Give them the slimmest of electoral victories, and it’s “pedal to the metal.”

Republican state officials are talking about responding as they did during the Clinton and Obama administrations: by using state power to push back.

The correct term for state push-back against the feds is interposition. James Madison first applied that word to state constitutional checks on federal power. Interposition is built into our constitutional system.

I’ve been advising state officials on interposition for nearly 30 years. In 2016, I examined the topic in a Heartland Institute issue paper (pdf). This essay summarizes some of the paper’s conclusions and adds further observations.

The methods of interposition range from very weak to the strongest possible constitutional approach. Several methods overlap, and state officials can use any or all of them. But some forms don’t always work and some backfire.

Educational Methods

One educational device is a state legislative resolution condemning some aspect of federal overreach. During the Clinton years, several state legislatures adopted “10th Amendment Resolutions.” The first of these, passed in Colorado in 1994, included the following language:

“Be It Resolved … That the State of Colorado hereby claims sovereignty, under the 10th Amendment to the Constitution of the United States, over all powers not otherwise enumerated and granted to the federal government by the United States Constitution.

“That this Resolution shall serve as Notice and Demand that the federal government, as our agent, is hereby instructed, effective immediately, to cease and desist, any and all mandates that are beyond the scope of its Constitutionally authorized powers.”

This “Notice and Demand” was toothless, and federal officials ignored it.

Sometimes even state officials ignore a legislative resolution. In 2011, the Montana legislature unanimously adopted a resolution opposing the Real ID program. Montana’s executive branch continued with the program, and the legislature eventually backed down.

I believe the time for passing mere resolutions is long past. Whatever educational value inheres in them also inheres in more efficacious measures.

Lobbying Congress

State legislative resolutions memorializing Congress on federalism issues are one form of lobbying, but Congress figuratively consigns them to the circular file.

In 1995, Michigan Gov. John Engler made it more personal. He camped out in congressional lobbies promoting a bill curbing federal mandates. He had some success. However, that was 26 years ago, when Congress was controlled by a new GOP majority eager to scale down federal excess.

I don’t consider state lobbying efforts to be worth much today, except perhaps in moderating bad legislation that’s going to pass anyway.

Judicial Challenges

States have sued the feds repeatedly in recent years. States’ most significant victory probably was persuading a 7–2 Supreme Court majority to strike down Obamacare’s mandate that all states expand their Medicaid programs.

A carefully considered judicial challenge is often worth the time and expense. But victories are rare and often narrow in scope.

Litigation can be very slow. The Supreme Court upheld the remainder of Obamacare only because it was supported by a “tax” designed to force citizens to buy government-approved health insurance. Yet Congress repealed that “tax” four years ago, and by the Supreme Court’s logic, Obamacare should have collapsed. But litigation continues, and the feds continue to force Obamacare on us—driving up costs, spreading arteriosclerosis throughout the medical system, and depriving states and families of health care freedom.

Coordination Among States

Interstate coordination is old, tried, and true: The first convention of American colonies was held in 1677 and the most recent convention of states met in 2017. There have been about 40 in all.

The basic procedure is that a state calls a convention to consider a common problem, other states agree to attend, and the state delegations meet to consider the issue and propose a solution.

Since the 1960s, conspiracy theorists have attacked interstate conventions on specious, often ridiculous, grounds. For example, in 1994–95, Nebraska Gov. Ben Nelson, a Democrat, and Utah Gov. Mike Leavitt, a Republican, proposed an informal “conference of the states” to explore common responses to federal mandates. Conspiracy fans claimed the proposed conference could become a “constitutional convention” that might stage a coup d’ état! As absurd as their claim was, it gave lukewarm lawmakers in many states an excuse to avoid participating.

Fortunately, in these days of teleconferencing, in-person consultations usually are no longer necessary (except for constitutional amendment purposes; see below). In addition, several national organizations of state officials regularly meet to facilitate communication. These groups include the American Legislative Exchange Council (ALEC) and the National Conference of State Legislatures.

Constitutional Amendment

By 1787, the “convention of states” device had proved so successful that the Founders inserted it into the Constitution as a way to formally present constitutional amendments to the states for ratification. The convention device enabled a super-majority of states to amend the Constitution without federal approval. It was a central “check and balance” in the federal system, much like the president’s veto—but more important.

Against all the Founders’ expectations, the mechanism has never been used. This, of course, is a major reason the federal government is now dysfunctional and overgrown. Yet the procedure is still available, and a majority of state legislatures (but not the necessary two-thirds) have approved convention resolutions.

Noncooperation

As I mentioned in a previous essay, the Supreme Court’s noncommandeering doctrine holds that the federal government generally may not order state governments to do things. States can refuse to cooperate with a federal program or enforce an unconstitutional federal law. This doesn’t prevent the federal government itself from administering its program or enforcing its law.

However, if a state accepts federal funding for a program, the central government can require a state to comply with the program’s conditions. For example, Congress may not order a state to raise its minimum age for drinking alcohol to 21, but it has accomplished the same thing by conditioning federal highway funds on a 21-year-old state drinking age.

I have long recommended that states reject federal grants that 1. infringe too much on the state–federal balance or 2. create destructive incentives or do other damage.

Here’s an ironic story about state noncooperation: During the Clinton and Obama years, conservative legislators often proposed noncooperation with unconstitutional federal programs. Left-wing politicians and media regularly accused them of being “extremists” and “nullifiers.”

But more recently, leftist-controlled state and local governments have stopped cooperating with a clearly constitutional federal program—immigration control. Suddenly noncooperation was no longer “extreme,” but “humane.”

Lawmakers considering noncooperation must take state executive branch attitudes into account. In 1995, Montana lawmakers adopted an “anti-mandate” statute, which required regular executive review of federal mandates, assessment of their impact on the state, and recommendations for mitigation. The executive branch largely ignored it.

‘Nullification’

Nullification has at least three meanings.

First: The traditional and most precise meaning is this: enacting a state law or state convention ordinance that declares a federal measure void within state boundaries.

There’s no constitutional merit to this form of nullification. Despite occasional assertions to the contrary, James Madison didn’t consider this a legitimate form of interposition. (Neither its proposer, Thomas Jefferson, nor its chief promoter, John C. Calhoun, were accurate constitutional scholars.)

Traditional nullification is too clumsy to address multiple federal actions, and attempts to employ it usually evaporate quickly. Moreover, the word nullification is infected with political poison. Fairly or unfairly, it’s associated in the public mind with the antebellum positions of Southern slaveholders.

Second: Speakers sometimes employ nullification to mean “interposition of all types.” I strongly discourage this usage, both for its imprecision and because of the word’s historical baggage.

Third: The word is used imprecisely to refer to state actions that go beyond noncooperation to affirmative operations in defiance of federal law. The best-known recent example is state “legalization” of marijuana.

Properly speaking, a state cannot legalize marijuana. Whatever the state does, the substance remains illegal by a federal law sustained by the Supreme Court. (I disagree with the court’s decision, but it’s not my opinion that counts.)

True, under the noncommandeering doctrine, states may repeal their own anti-pot statutes. That’s a legitimate form of noncooperation. But many states have gone beyond repeal. They have adopted statutes erecting or authorizing extensive cannabis distribution and regulatory networks. They even finance state operations from sales.

Technically, those states are involved in a criminal conspiracy. They have gotten away with it because marijuana legalization is a favorite cause of the left. Whether conservative states could do the same in other areas is an open question.

As a licensed lawyer, I can’t recommend flouting federal law. But some states might decide to do so. For example, a state might defy Obamacare by “legalizing” and affirmatively supporting free-market health care options that Obamacare purportedly prohibits.

Each state must decide for itself on its preferred methods of interposition. To counter media hostility, officials must remind their constituencies regularly that interposition is an integral check-and-balance built into our constitutional system.

Robert G. Natelson, a retired constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He is also on the ALEC board of scholars, and has long advised state lawmakers on federalism issues. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed. 2014).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.