During the decades prior to the American Civil War, some State governments attempted to invoke “nullification” as a legal doctrine to thwart federal laws they believed violated their State’s rights. The idea behind nullification was this:
a) The federal government was created by consent of the States;
b) The federal Constitution limited the authority of the federal government over State sovereignty;
c) The States retained whatever power they did not expressly grant to the federal government;
d) The principle that governmental power over the citizenry being shared between the States, and federal government (neither of which could infringe on the sovereignty of the other) was one of the ‘checks and balances’ intended to limit the power of each. By dispersing governmental power, tyrannical concentration in one entity was inhibited.
All of those premises are historically, and legally, correct. But the States claimed (erroneously) that those premises empowered them to decide for themselves if any act by the federal government infringed on States’ sovereignty.
In other words, the individual States could “nullify” (disregard) any federal law they considered as infringing on their sovereignty.
Nullification was a concept originally proposed by Thomas Jefferson, and James Madison, in the Virginian Resolution of 1798.
…the [Virginia] General Assembly doth solemenly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional…
The Virginia legislature believed they had the authority to declare federal laws unconstitutional. The laws they were addressing in that Resolution were the Alien Act and Sedition Act, both enacted by the federal Congress in 1798.
Jefferson argued in the Virginia and Kentucky Resolutions that states had an “equal right to judge for themselves” when the federal government exceeded its powers. If states found a federal act unconstitutional, they could deem it void and inoperative within their borders. This concept resonated with those who valued state sovereignty and feared a strong central government might infringe on individual liberties.
After the 1800 election of Thomas Jefferson, the acts were repealed or allowed to expire, so the idea of state nullification didn’t get adjudicated by the United States Supreme Court (SCOTUS) until years later.
The next ‘crisis’ relating to State nullification of federal laws was in 1832, when the South Carolina legislature declared that a tariff enacted by the federal government to be “null and void” in their state. John C. Calhoun, vice-President of the United States at the time (and a former Senator from South Carolina) declared that individual States had the power — under the federal Constitution — to “veto” laws passed by the federal Congress.
Unfortunately for Calhoun, he was only the Vice-President. President Andrew Jackson was of the opposing point of view. Jackson told South Carolina government officials they would follow the tariff law — and that he was prepared to use the federal military to make them do so.
The US Congress voted Jackson the resources to use federal force to make South Carolina comply with the tariff — including arresting State officials if necessary. Those state officials backed down.
Having failed at nullification as a means to ignore federal laws, in 1861 South Carolina tried a different approach. They seceded from the United States, and fired artillery at the federal fort in Charleston harbor. That didn’t work out so well for them either.
The very idea of state nullification of federal law is contrary to the explicit language of the federal Constitution. Article VI, Clause 2, declares
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Following the 1954, SCOTUS decision in Brown v Board of Education I that declared segregated schools unconstitutional, several states attempted to invoke a form of nullification as a basis to ignore the Court’s ruling. They didn’t come right out and claim nullification; they simply delayed… and delayed… and delayed compliance with the court’s subsequent order that school desegregation should proceed “with all deliberate speed”.
In 1958, the SCOTUS reiterated that the states were not only bound to comply with “Laws of the United States” enacted pursuant to the Constitution, but also with decisions of federal courts, “A Governor who asserts a power to nullify a federal court order is similarly restrained.”
So the idea that individual States can pick and choose which federal laws they will, or will not, obey is a discredited concept. But that fact seems to be lost on jurisdictions that have declared themselves to be “sanctuaries” from the enforcement of federal immigration laws.
According to the Black’s Law Dictionary (7th Ed.) sitting here on the shelf next to me, sanctuary is defined as “A safe place, where legal process cannot be executed.” It goes on to quote from An Introduction to Legal History (1990) that in medieval England and parts of Europe, sanctuaries were:
…ecclesiastical places where the king’s writ did not run. The underlying theory was that consecrated places should not be profaned by the use of force, but the result in practice was that thieves and murderers could take refuge and thereby gain immunity even against the operation of criminal justice.
Damn … that sounds familiar?
“Law-snubbing “sanctuary cities” during the four-year Biden-Harris administration freed over 22,000 criminal migrants sought by Immigration and Customs Enforcement for deportation, according to newly reviewed federal records. The reports found that from 2021 to 2024, 22,040 illegal immigrants were let out of jail into communities instead of being peacefully transferred to ICE.
That represents about 6% to 7% of those sought nationally by ICE for deportation, according to Jessica Vaughan, the director of policy studies at the Center for Immigration Studies who released the findings. She has filed a Freedom of Information Act request for where those illegal immigrants were released.
There are hundreds of sanctuary cities in America.
“It’s bad enough that the Biden policies have allowed so many criminals to come into our country, but it’s downright absurd that so many local officials deliberately release them back into the community after they’ve committed crimes instead of letting ICE send them back home..”
Well… in the past week that lawlessness has come to a screeching halt.
As Presidents Andrew Jackson, and Abraham Lincoln proved, the federal government can use whatever power it deems necessary to enforce federal laws — as did President Ulysses Grant when he sent federal troops into southern states to enforce Reconstruction laws protecting freed slaves, and when President Eisenhower sent in the US Army to enforce desegregation of a high school in Arkansas.
So, too, can President Donald Trump to enforce federal immigration laws. Under federal law, and his authority in the U.S. Constitution, Governors, Sheriffs, Mayors, and anyone else who obstructs lawful deportations can be arrested and charged with federal crimes. They can’t choose to ignore federal law by calling it sanctuary any more than by calling it nullification. Those are merely different words for the same illegal acts.
The “sanctuary city” espoused by those invoking it raises a tangential question that I have asked some of them. If the very idea of a sanctuary has an ecclesiastic origin, doesn’t claiming to be a sanctuary invoke religious authority? How does that square with the idea of separation of church and state? How can you argue both for a government policy based on religion, and also for a “wall of separation between church and state”?
Watching them go through mental and verbal contortions trying to explain that clear intellectual inconsistency has been good for a few laughs. Usually they get pissed, tell me what to go do to myself — and I’m reminded why Socrates was condemned to drink hemlock!