Whether states can nullify a federal law without a court striking it down was an issue that sparked the Civil War, and many scholars argue the matter was settled 150 years ago. The courts are the only option for disgruntled states, according to Neil Kinkopf, a constitutional expert at Georgia State University’s law school.
“This is the most thoroughly settled question in constitutional law,” he said.
University of Georgia law professor Logan Sawyer agrees.
“It was most famously rejected by Andrew Jackson in the 1830s and then during the Civil Rights Movement in the 1950s,” he said. “No court accepts the doctrine today.”
However, Rep. Jason Spencer, R-Woodbine, argues nullification was supported by Thomas Jefferson and other founding fathers and that the Civil War didn’t change the powers the Constitution gives to the states.
“It’s a doctrine I believe is valid,” said Spencer, who is a member of the informal Conscience Caucus of conservative legislators.
He sponsored House Bill 352 which would create a 10-member commission to review every new federal law and recommend ones legislators should vote on nullifying.
“Neither the state nor its citizens shall recognize or be obligated to live under such statute, mandate or executive order,” notes the bill.
Georgia has used the courts to try to strike down laws it objects to. For instance, it joined half of the states in asking the U.S. Supreme Court to reject the federal health-reform law known as ObamaCare. That court upheld the bulk of the law, but it agreed with the states about one part that would have withheld Medicaid funds as punishment if states refused to expand that insurance program for the poor. As a result, Gov. Nathan Deal has decided not to expand it here now that there’s no penalty.
But the federal courts could be wrong and refuse to reject an unconstitutional law passed by Congress and enforced by the executive branch, Spencer notes.
“Who checks the federal government when all three branches assault the states?” he asks.
The second-term legislator doesn’t expect his bill to pass, at least not this year. Instead, he sees it as an opportunity to educate his colleagues during a hearing he expects to get in committee.
In Mississippi where a pair of Tea Party advocates introduced a similar bill, a legislative committee voted it down last week.
“I don’t know why we would want to bring that ridicule on Georgia,” Kinkopf said.