A trend has been rising across America: Nullification, the refusal of federal policies by the States which are deemed unconstitutional, has been increasing in use, attempts, and mainstream attention. Maine itself has been a leader on the issue and has been open to the idea, nullifying on a number of occasions and considering further measures beyond that.
REAL ID Act of 2005 is one example, when the Legislature overwhelmingly passed a Resolution in 2007 refusing compliance and urging Congress to repeal the law. Since this point, twenty-five states have joined Maine in refusing the federal legislation. Although arguably the most successful nullification, this is not the first time Maine has moved to nullify federal law. Marijuana, whether it be completely decriminalized or just allowed for medical purposes, is nullification of federal law. The Controlled Substances Act is still on the books and has yet to be repealed by Congress, or even amended to allow these exceptions by State law. Maine citizens in 1999 and 2009 both voted in favor of medical marijuana laws, effectively nullifying federal law. 2002 also saw the Legislature expand the 1999 marijuana nullification law.
In 2010, Maine again considered a number of bills that would nullify unconstitutional federal laws. Two of these bills, LD 1233 and 1305, both sponsored by Representative Aaron Libby (R-Waterboro), would have nullified the federal Patient Protection and Affordable Care Act and returned power over the National Guard back to the Governor, respectively. Rep. Libby, a farmer who operates a family farm in Limerick, also introduced a Joint Resolution in support of Food Sovereignty, which cleared the Legislature. Both ideas are hardly radical, and make a lot of sense.
The idea is not to say absolutely zero assistance from government on healthcare, but it is more of a question of management. What makes anyone believe the federal government can efficiently assist the industry? It can’t, and that’s why the Constitution didn’t enumerate them the power. If we’re going to do it, the State level is the preferable route. As for the other piece of legislation, the militia is supposed to be controlled by the Governor of the respective state. It was this way until Congress changed it, not by amending the Constitution, but rather passing the Militia Act of 1903 that transformed the militia into the National Guard. Why does it matter? The more checks and balances on any power, especially when it comes to war, is important and that’s why the Constitution included it. How far is the imperial presidency getting us, under either party?
Another bill of interest from 2010 is LD 1172, sponsored by Representative Mel Newendyke (R-Litchfield), which would have nullified all federal laws affecting in-state commerce. Under the Constitution, Congress has the power to pass laws affecting interstate commerce only. The purpose for this was to prevent economic warfare among the states, which resulted under the Articles of Confederation’s weak powers. Commerce within the states however, is untouchable by Congress and pursuant to the Tenth Amendment, can only be regulated by the respective State Legislatures or lower levels of government. Just with the health care nullification, the issue here isn’t commercial regulations themselves, but the level in which they are enacted. A federal law may work well for one state, but could really hurt Maine’s economy. The one-solution-fits-all idea rarely is beneficial to all. Thus, because nobody knows better for Maine than Mainers themselves, the Constitution leaves the Maine economy to Mainers to decide.
Nullification is not unreasonable. The history began with the Kentucky and Virginia Resolutions of 1798, which were pushed by Thomas Jefferson and James Madison, respectively. The reason was the passage of the federal Sedition Act, which made it a crime to speak negatively of the government or its officials. It would later be utilized on moral grounds by a number of northern states in the mid-19th century, in response to the Fugitive Slave Acts of 1793 and 1850. Personal liberty laws were passed to protect escaped slaves, in violation of federal law that ordered their return to their owners.
What is normally considered radical, or rebellious, is really grounded in precedent and for good purposes. For the principles of local governance and maintaining the efficient balance of government, let’s hope that the Maine Legislature again pursues nullification in 2013.