When Liberty Subverts Federalism: Is Nullification of Federal Law Legitimate?

The federal Constitution of the United States has repeatedly been praised for its brevity and clarity. It is the first federal Constitution and has been a model for the constitutions of several other federal countries, ?the noblest fabric of government, ever devised by man?. Nonetheless, when it comes to the distribution of powers between states and federal government its wording is still subject to polarising interpretations and therefore the battleground of political struggle. The recent debate over President Obama?s Health Care reform is an outstanding example of this conflict. Specifically, the intervention of the federal government in reform of the private insurance market has been criticised as beyond Congress? powers (the argument is that Congress lacked the constitutional authority to enact the individual mandate) and has been challenged before the Supreme Court. Despite the Sebelius ruling upholding the reform as constitutional, the debate over the constitutionality of the reform is still ongoing and the Supreme Court has granted certiorari to another challenge, King v. Burwell, concerning the legality of IRS subsidies in federal exchanges. The political opposition to the reform has also triggered an interesting constitutional phenomenon in a number of state legislatures: the nullification of certain provisions of the Act. What is nullification? A state measure that declares an action of the federal government to be unconstitutional and asserts that the federal action is null, void, and of no effect within the state. In 2014 alone, the legislatures of 26 states have considered at least 120 bills aimed at nullifying the Affordable Care Act. Such legally controversial proposals are growing in number and they disclose a revival of states? rights, wrapped in the ?ag of the founding principle of individual liberty. May the States lawfully declare federal laws void within their state's boundaries? The U.S Constitution?s Supremacy Clause states that federal law trumps state law when the two conflict. On the other hand, activists advance Madison?s and Hamilton?s theory of interposition and Jefferson?s theory of nullification, insisting on an originalist interpretation of the Constitution. This paper is a foray in constitutional theory: it is intended to stimulate discussion over the legality of these controversial state measures and provides an analysis of the major nullification arguments.