Friday Interview: States Talk Back to the Federal Government | Eastern North Carolina Now

   Publisher's note: This is a most interesting conversation on Carolina Journal Radio about the United States Constitution and Federal Government.

Wake Forest professor rejects nullification, outlines three other strategies

    RALEIGH     The U.S. Constitution is the supreme law of the land, and it trumps state constitutions and state laws. Does this mean the federal government can tell state governments what to do? John Dinan, professor of political science at Wake Forest University, addressed that question during a recent presentation for the John Locke Foundation's Shaftesbury Society. He also discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

    Kokai: The topic of your discussion really dealt with times when the state governments don't like what the federal governments are directing them to do. You mentioned that there are some avenues these states could take that would tell the federal government, "We don't like this."

    Dinan: The genesis of the talk is that states are being particularly active in the last 10, 15 years and talking back to federal officials. Whether it be in regard to passing state statutes challenging the 2010 Affordable Care Act or the 16 states that have passed medicinal marijuana laws decriminalizing medical marijuana in their states, whether it be in regard to No Child Left Behind, firearms freedom acts, light-bulb freedom acts.

    My question was: Are these acts legitimate for states to do? And what is legitimate for states to do? And can they ever be effective? Do they mean anything? And my goal was to try to argue that state actions of this kind can be legitimate as long as they take a certain form. Some states in the previous parts of American history have actually asserted a doctrine of nullification, or of the ability of defying direct federal court orders. My argument was that we've come -- through a construction of the Constitution -- to view those as illegitimate, and yet to still leave some range for states to push back against federal laws. And I've tried to sketch out some of those ways.

    Kokai: In saying that nullification is not the way to go, you said that there are basically three different ways that states can, and have, told the federal government: "Wait a minute. We don't like what you're doing."

    Dinan: There are. And one of those ways is, the federal government oftentimes gives states a choice about whether to participate in programs, and they certainly hope that states participate, but they can't require them to do it because they actually don't have the enumerated power to do so. In that sense, states do not actually have to raise their drinking age to 21. They were told to do so or they would lose a certain portion of their federal highway funding. ...

    Most of the federal directives for the No Child Left Behind Act were: "You will do this, or you will lose a portion of your Title I education funding." So one of the options that states have is to simply say, "We're not participating in this program, and we're going to suffer the consequences of reduced funding." That's what some states have done in recent years.

    Kokai: What's option No. 2?

    Dinan: A second option is for states to say, well, certain matters are jointly shared by state and federal law control. That is, it's possible for the federal government to criminalize a certain activity and state governments to criminalize or not criminalize it. A leading example here is medical marijuana. The federal government has said that marijuana is subject to federal criminal penalties, but states then have a choice about whether or not they want to make medical marijuana criminal under state law or not.

    Sixteen states have now said it will not be a criminal activity under state law for medical marijuana possession and use. And by doing that, they're trying to push back against the federal government and trying to influence the federal government. "Don't enforce your federal law in our states. We disagree with this." The federal government, if it wants to, can still enforce the law. But those 16 states are trying to put pressure on them.

    Kokai: And then there is a third option.

    Dinan: The third option -- this is perhaps the one that's become most controversial. States can pass statutes that are inconsistent with federal directives in an issue where Supreme Court doctrine is uncertain or in flux, for the purpose and part of generating a case before the Supreme Court that would test the legitimacy of the federal law. Here the leading example would be the 15 states that have, to date, passed statutes exempting individuals in those states from the pending individual mandate requirement of the 2010 Affordable Care Act.

    It's notable that none of those 15 states said actually, "We hereby nullify the Affordable Care Act." What they've said is, "We believe that the federal government doesn't have the power, actually, to enact this individual mandate provision under the Commerce Clause. We're going to pass a contrary state law, and we're going to use that contrary state law to get a case before the U.S. Supreme Court. We think we have a chance of winning in the Supreme Court because we think the U.S. Supreme Court will see the conflict between the state and federal law and they'll say that federal law expands beyond Congress' enumerated powers to regulate interstate commerce."

    Kokai: So you've set out three different ways the states can react to these federal directives and say, "Wait a minute, we don't like what you're telling us to do." Do we have a sense, at this point, about how well they work? I mean, obviously, if the states take these actions and the federal government says, "Too bad, you have to do this stuff anyway," it would be kind of pointless.

    Dinan: The key to all these is that you're trying to put pressure on federal officials to relax, moderate, repeal directives. You're not taking the law into your own hands and saying, "We're hereby nullifying or declaring invalid this federal act." But what you're doing is, you're saying, "We're going to ... try to put pressure on officials and show them that this is such a concern of states that it ought to be a concern of federal officials, too." This has happened with the No Child Left Behind Act. Certainly, a lot of people complained about the No Child Left Behind Act. Teachers' unions complained. Various individuals complained. State officials complained.

    And we saw, over the course of the Bush administration, certainly during the second term, and then just in recent months with the Obama administration, the administrations of both were lax to some of the No Child Left Behind Act directives. Why did they do so? In part because states put so much pressure on them and made them aware of their concerns. In part also, particularly in the case of the Bush administration, that was a Bush administration signature domestic policy agenda. They wanted things to succeed, and if states were not going to participate, as some states were threatening to do, it wasn't going to succeed. So states, by calling attention to their concerns, can make an issue out of them and even can kind of force or lead federal officials to accommodate their concerns.

    Kokai: In addition to the question of whether this is effective or not, the other main question is: Should the states be doing this sort of thing, or should the states just let the federal government do what it's going to do unless it's going to be obviously unconstitutional? Do you have a sense of whether this is a good thing?

    Dinan: It's been a vibrant debate, particularly in response to the passage of state statutes exempting individuals from the health care mandate, but also in some other areas as well. A number of commentators argued that those were improper measures for states to take, not just improper from a constitutional perspective, these commentators argued, but it was harmful to the federal system. They said it was threatening to the unity of the country for states to engage in these activities.

    That's one view of it. But there's also another view, and perhaps a more persuasive and more compelling view. ... The federal government will sometimes pass on burdens to state governments. They'll pass laws. They'll say, "Oh, a full 100 percent of students will be educationally proficient by a certain time period." But who were they putting the burden on to make that happen? State governments. One could multiply those examples.

    Insofar as you have the federal government passing on those burdens to states, or trying to, I would see it as not just expected that states would try to talk back, but to be welcomed that state governments would send up a flag, send up a signal of some kind, and try to put pressure on the federal officials to say, "You've passed this law, but how is it going to actually be implemented effectively?" State concerns should be taken account of. One might view that as a healthy development.