法律英语：125 Can States Opt Out of Federal Law?

by Adam Freedman

Today’s topic:  Nullification. Can states opt¹ out of federal laws they don’t like?
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
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What is Nullification?
The term “nullification” refers to the ability of a state to resist or ignore a federal law that it considers to be unconstitutional. The idea has been getting a lot of attention lately as dozens of state legislatures are considering laws to block the implementation² of the new federal healthcare law within their borders. As I’ll explain in a minute, such measures have dubious³ legal effect, but they can have enormous practical impact.
Can States Opt Out of the New Federal Health Care Law?
In an earlier episode, Is the Health Care Law Unconstitutional, I explained some of the arguments for and against the constitutionality of the new health care law. Well, a number of state legislatures have apparently⁴ decided⁵ that the law is not constitutional. According to press reports, 36 states are considering legislation to block implementation of the new law within their borders. Many--if not most-- supporters of these laws invoke⁶ what they consider to be an inherent right of states to “nullify” federal laws that they consider exceed the federal government’s constitutional power.
And that’s not the only recent example of nullification.   A similar wave of state laws swept the nation over the last few years in reaction to the REAL ID Act, a 2005 law signed by President Bush, requiring states to conform to certain federal standards for drivers’ licenses⁷ and identification cards, and requiring states to share certain data.   Some 25 states have passed legislation denouncing the legislation and--in the case of some states--flatly refusing to cooperate with the law.
Who Decides What Federal Laws States Can Block?
The legal basis for nullification is the Tenth Amendment⁸ to the Constitution which provides that the powers not delegated to the federal government generally belong to the states or to the citizens.   But the Tenth Amendment does not answer one very important question: who gets to decide whether a particular power was or was not delegated to the federal government?
If at this point, you’re furiously raising your hand and saying “I know, I know, it’s the Supreme⁹ Court!” then you’re at least partially¹⁰ right. For 200 years, most Americans have looked to the Supreme Court as the ultimate authority on the constitutionality of federal laws. But nothing in the Constitution specifically grants the Supreme Court that power. Instead, the Supreme Court itself declared that it had the power to strike down unconstitutional laws, in the 1803 case of Marbury vs. Madison.
Supporters of nullification argue that even if the Supreme Court has the power to strike down unconstitutional laws, there’s no reason the Court should have exclusive power to do so. After all--the argument goes--isn’t it a little strange to give the federal government the exclusive power to determine the extent of its own power? Shouldn’t the states have the power to smackdown the federal government when it oversteps its bounds?
One quick point: in case you’re wondering, state nullification has nothing to do with “jury nullification” which is a completely different concept. Jury nullification is a term used to describe situations in which a jury refuses to apply the law in a particular case.
It Began in 1798
According to experts, the state nullification movement has its roots in the earliest days of the American republic. When John Adams was President, Congress passed the infamous¹¹ Alien and Sedition¹² Acts, a series of laws which, among other things, made it essentially¹³ illegal to criticize the government. In 1798, Virginia and Kentucky each passed resolutions asserting their power to “nullify” federal legislation.   And these resolutions were not the product of fringe lunatics--they were backed by James Madison and Thomas Jefferson.
Other Nullification Examples
Jefferson and Madison may have come to regret their impetuousness. Some years later, when Jefferson was President, a number of New England states asserted their right to “nullify” federal law, specifically a federal embargo¹⁴ on all foreign trade imposed by Jefferson as an attempt to punish France and England. And a few years after that, when Madison was President, Connecticut invoked¹⁵ its right to nullify federal law when it refused to call up its militia¹⁶ to fight in the War of 1812.
Nullification arose again in 1828 and 1832, when South Carolina passed nullification resolutions to resist certain tariff¹⁷ laws. In the 1850s a number of northern states refused to comply with the Fugitive¹⁸ Slave Act, a law that put all runaway¹⁹ slaves under federal jurisdiction²⁰, where they were denied jury trials and other aspects of due process.
Is Nullification “Legal?”
What is the legal effect of nullification? It’s a little hard to say. Certainly, the Supreme Court would say that state nullification laws have no effect whatsoever²¹ because only the Supreme Court can strike down a federal law. But the supporters of nullification argue that the States can trump²² the Supreme Court. I don’t have the ultimate answer but it’s worth noting that James Madison didn’t think that the nullification resolutions he helped to write were actually binding²³.   He called the resolutions “expressions of opinion,” whose intent was to bring about results by swaying public opinion.
By that measure, nullification can be a powerful tool.   Remember the REAL ID Act? It was supposed to go into effect in 2008. But the resistance from the states has led to several delays in its implementation.   President Obama--who opposed REAL ID during the campaign--does not appear to be moving very aggressively on implementation of the law; and it’s likely that he takes some comfort in the fact that so many states oppose the measure. But, as we saw with Jefferson and Madison, two can play at the nullification game, and the President is probably none too pleased at the nullification resolutions directed at his healthcare reform.
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful²⁴ Life. You can send questions and comments to............Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.
 

1 opt   

vi.选择，决定做某事

参考例句：

• They opt for more holiday instead of more pay.他们选择了延长假期而不是增加工资。
• Will individual schools be given the right to opt out of the local school authority?各个学校可能有权选择退出地方教育局吗？

2 implementation   

n.实施，贯彻

参考例句：

• Implementation of the program is now well underway.这一项目的实施现在行情看好。

3 dubious   

adj.怀疑的，无把握的；有问题的，靠不住的

参考例句：

• What he said yesterday was dubious.他昨天说的话很含糊。
• He uses some dubious shifts to get money.他用一些可疑的手段去赚钱。

4 apparently   

adv.显然地；表面上，似乎

参考例句：

• An apparently blind alley leads suddenly into an open space.山穷水尽，豁然开朗。
• He was apparently much surprised at the news.他对那个消息显然感到十分惊异。

5 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

6 invoke   

v.求助于(神、法律)；恳求，乞求

参考例句：

• Let us invoke the blessings of peace.让我们祈求和平之福。
• I hope I'll never have to invoke this clause and lodge a claim with you.我希望我永远不会使用这个条款向你们索赔。

7 licenses   

n.执照( license的名词复数 )v.批准，许可，颁发执照( license的第三人称单数 )

参考例句：

• Drivers have ten days' grace to renew their licenses. 驾驶员更换执照有10天的宽限期。 来自《现代汉英综合大词典》
• Jewish firms couldn't get import or export licenses or raw materials. 犹太人的企业得不到进出口许可证或原料。 来自辞典例句

8 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

9 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

10 partially   

adv.部分地，从某些方面讲

参考例句：

• The door was partially concealed by the drapes.门有一部分被门帘遮住了。
• The police managed to restore calm and the curfew was partially lifted.警方设法恢复了平静，宵禁部分解除。

11 infamous   

adj.声名狼藉的，臭名昭著的，邪恶的

参考例句：

• He was infamous for his anti-feminist attitudes.他因反对女性主义而声名狼藉。
• I was shocked by her infamous behaviour.她的无耻行径令我震惊。

12 sedition   

n.煽动叛乱

参考例句：

• Government officials charged him with sedition.政府官员指控他煽动人们造反。
• His denial of sedition was a denial of violence.他对煽动叛乱的否定又是对暴力的否定。

13 essentially   

adv.本质上，实质上，基本上

参考例句：

• Really great men are essentially modest.真正的伟人大都很谦虚。
• She is an essentially selfish person.她本质上是个自私自利的人。

14 embargo   

n.禁运（令）；vt.对...实行禁运，禁止（通商）

参考例句：

• This country put an oil embargo on an enemy country.该国对敌国实行石油禁运。
• During the war,they laid an embargo on commerce with enemy countries.在战争期间，他们禁止与敌国通商。

15 invoked   

v.援引( invoke的过去式和过去分词 )；行使（权利等）；祈求救助；恳求

参考例句：

• It is unlikely that libel laws will be invoked. 不大可能诉诸诽谤法。
• She had invoked the law in her own defence. 她援引法律为自己辩护。 来自《简明英汉词典》

16 militia   

n.民兵，民兵组织

参考例句：

• First came the PLA men,then the people's militia.人民解放军走在前面，其次是民兵。
• There's a building guarded by the local militia at the corner of the street.街道拐角处有一幢由当地民兵团守卫的大楼。

17 tariff   

n.关税，税率；(旅馆、饭店等)价目表，收费表

参考例句：

• There is a very high tariff on jewelry.宝石类的关税率很高。
• The government is going to lower the tariff on importing cars.政府打算降低进口汽车的关税。

18 fugitive   

adj.逃亡的，易逝的；n.逃犯，逃亡者

参考例句：

• The police were able to deduce where the fugitive was hiding.警方成功地推断出那逃亡者躲藏的地方。
• The fugitive is believed to be headed for the border.逃犯被认为在向国境线逃窜。

19 runaway   

n.逃走的人，逃亡，亡命者；adj.逃亡的，逃走的

参考例句：

• The police have not found the runaway to date.警察迄今没抓到逃犯。
• He was praised for bringing up the runaway horse.他勒住了脱缰之马受到了表扬。

20 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

21 whatsoever   

adv.（用于否定句中以加强语气）任何；pron.无论什么

参考例句：

• There's no reason whatsoever to turn down this suggestion.没有任何理由拒绝这个建议。
• All things whatsoever ye would that men should do to you,do ye even so to them.你想别人对你怎样，你就怎样对人。

22 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

23 binding   

有约束力的，有效的，应遵守的

参考例句：

• The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
• Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。

24 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。