The new nullification

Recently, 132 mayors across America announced they were going ahead with policies to fight global warming despite the Bush administration's rejection of such measures. In doing so, they were adding to a series of acts by states and localities that when taken together add up to a new and growing nullification movement. Nullification is a long debated theory that says that states have the right to defy federal law or "nullify" it if they feel a particular law is unconstitutional. While the mayors were not exactly defying a federal law, they were openly snubbing an official federal policy of inaction on greenhouse gas emissions. Their action and many similar ones are beginning to call into question the ability of the federal government to impose its will on the individual states and localities.

Take the lawsuit by eight states and New York City against utilities designed to force the utilities to reduce greenhouse gas emissions. The suit was filed because the EPA refused to take action to regulate carbon dioxide emissions, a move that prompted an earlier lawsuit against the agency. Both suits are direct confrontations with a federal government which currently wants to do nothing about greenhouse gas emissions.

In the area of genetically engineered crops, the Food and Drug Administration has long held that such crops are virtually identical to non-biotech crops and therefore require no testing or extraordinary regulation. But, two counties in California have already banned their planting, and a third has a ban on the ballot this year. (Monsanto, the world's largest producer of genetically engineered crops, is fighting back by trying to pass state laws that pre-empt local control of biotech crops.)

But, the nullification now sweeping the country doesn't just include environmental policy. Connecticut recently passed a civil union law giving gay and lesbian couples rights substantially similar (though not identical) to those afforded heterosexual couples. While federal law does not recognize such unions, and no other state is obliged to honor them, the law is a clear defiance of federal policy. (The move does not, however, seem to be motivated entirely by ideological considerations. No doubt Connecticut hopes to attract gay and lesbian refugees, especially well-off and highly educated ones, from other states that are hostile to them.)

In the area of education, the Bush administration's vaunted No Child Left Behind legislation--which requires much of the states, but gives them little in the way of money to do it--is being resisted even in Republican strongholds such as Virginia and Utah. A few states are saying they will "opt out" of the law, something that would be a real nullification in the traditional sense of the word.

In health care the people of the state of California last fall repudiated the Bush administration's policy on stem cell research by passing their own $3 billion bond measure for such research over the next decade. Again, the differences are not strictly ideological. Californians believe this research investment will put their state in the forefront of a cutting edge industry.

But, perhaps the best-known acts of nullification are resolutions by states, cities and counties across the nation that call for refusing cooperation with federal authorities trying to enforce the so-called USA Patriot Act. To date some 386 resolutions have been passed. The list of cities includes Albuquerque, Atlanta, Austin, Baltimore, Dallas, Des Moines, Detroit, Los Angeles, Milwaukee, Minneapolis, New York City, Philadelphia, Pittsburgh, Portland (ME), Portland (OR), Providence, Richmond (VA), St. Louis, St. Paul, San Francisco, Seattle, and Washington, D. C. itself! States include Alaska, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont.

Given today's climate, it is instructive that the first acts of nullification took place in 1798 and 1799 when Virginia and Kentucky declared the Alien and Sedition Acts passed by the Adams administration to be unconstitutional. The acts put additional restrictions on immigration, allowed deportation of those deemed "dangerous to the peace and safety of the United States" and gave the president the power to imprison aliens during wartime by presidential order alone. The Sedition Act outlawed assembly if there was "intent to oppose any measure of the government" and made it a crime to criticize the government of the United States. When Thomas Jefferson--who had been partly responsible for the nullification in Virginia--won the White House, he stopped enforcement of the laws.

There are two converging trends which are likely responsible for bringing nullification back to the center of American life. The first is ideological. For years Republican-appointed judges on the U. S. Supreme Court have been rolling back federal power and pursuing a states' rights agenda. This has encouraged states and localities to test the limits of federal power not only more frequently in the courts, but also in the form of outright defiance. The second trend is social and ecological. The complexities of modern society make it more difficult for a central authority to create solutions to problems for an entire country. Since federal solutions are either not forthcoming or considered wrongheaded, states and localities are taking things into their own hands.

This second trend may be cause for both hope and despair. It means more power is devolving to the local level and that local politics are becoming more and more important. Fortunately, individuals and small groups can have far more effect on local governmental action than on federal actions. Perhaps unfortunately, the country is splitting into enclaves with deeply differing social and political views. This splitting may be inevitable, and it means the prospects for members of various communities across the nation will differ even more markedly in the future than they do now.

However, for those concerned about environmental and social justice issues, the new nullification may provide an opening to effective action in ways that have not been previously available. Will the progressive and environmentally concerned elements of American society take hold of this opportunity, or will they squander it by continuing to focus on an increasingly feckless federal government?

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