Election 2012: What Lies Beneath

Ilana Haramati & Michael A. Zuckerman*

The recent election seems like a decisive victory for federal power.  In re-electing the President, voters appeared to have resoundingly rejected Tea Party notions of states rights in favor of a robust federal government.  The 2012 election, however, was about more than the presidential contest, and other aspects of the election expose a strand of states rights populism somewhat reminiscent of the 19th Century.

Consider certain state ballot measures put to voters this past Election Day.  Colorado and Washington voters considered whether to legalize marijuana.  Alabama, Florida, Wyoming and Montana voters considered whether to prohibit anyone from being compelled to purchase health insurance (the essence of Obamacare’s individual mandate).  

At first glance, these states – and their ballot measures – seem dissimilar. After all, Colorado, Washington and Florida (just barely) went to President Obama, while Alabama, Montana and Wyoming went to Governor Romney.  The left wants to legalize marijuana, while the right wants to override the individual mandate.  Yet,  these measures share a common anachronism – they challenge the supremacy of federal law, distantly but surely echoing South Carolina’s pre-Civil War attempts at nullification.

In 1828, after Congress passed a protective tariff that the South opposed, Vice President John C. Calhoun, a South Carolina native, began to publicly advocate that South Carolina nullify the tariff.  Calhoun argued that South Carolina, as a sovereign entity, need neither enforce nor adhere to a tariff that it believed unconstitutional.  After Congress refused to lower the tariff in 1832, a South Carolina special constitutional convention declared the tariff unconstitutional and therefore null and void in the State.

President Andrew Jackson obtained authorization to use military force to enforce the tariffs in South Carolina.  South Carolina responded by activating a 25,000-strong state militia.  Before the first shots were fired, however, Congress enacted the Compromise Tariff of 1833, acceptable to both the North and South, and South Carolina dropped its objections.  Crisis averted – temporarily.

South Carolina would soon secede from the Union.  The rest is history.  The South lost the Civil War, and the Reconstruction-era Fourteenth Amendment further tipped the balance of power towards the federal government.  States could no longer credibly advocate their right to nullify federal law.

Fast forward to 2012.  Voters in Alabama, Colorado, Montana, Washington, and Wyoming approved measures apparently challenging the supremacy of federal law.  The Colorado and Washington measures do so less explicitly – marijuana is illegal under federal law, and these states simply declare it legal for some purposes under state law.  Although not nullification in the strict sense, these measures were designed to undermine federal drug policy.

The health care measures like Alabama’s present a more abrupt – and troubling – affront to federal power.  In the case of Alabama, for example, voters amended the state constitution “to prohibit any person, employer, or health care provider from being compelled to participate in any health care system.”  This smacks of Calhoun-style nullification by purporting to mute the applicability of a federal law within the state’s borders.  But unlike the nullification crisis of the 19th Century, the healthcare debate will not lead to civil war.  

It is safe to say that none of these states, as a practical matter, will seek to nullify Obamacare.  Indeed, by almost all accounts, the measures are entirely symbolic. The states recognize their inability to nullify federal law.  

But the symbolic nature of the measures does not make them appropriate in our constitutional system.  They are not.  Although President Obama’s reelection may have signaled popular support for a federal approach, this undercurrent of state rights populism threatens to reopen long-settled questions of federal supremacy.  Americans must be mindful of our nation’s long and difficult struggle to protect the uniform applicability of federal law.  Even if we disagree with Obamacare, we must reject disgruntled states’ attempts to upset our constitutional balance by nullifying federal law.  Our democratic system allows for more effective and appropriate ways to dissent.

*Ms. Haramati, a graduate of New York University School of Law, is a lawyer admitted to practice in New York. Mr. Zuckerman, a graduate of Cornell Law School, is a lawyer admitted to practice in Illinois.