The country as it relates to states sovereignty. These are the reactions by states to federal law and what the states are trying to do about it in some cases. Our guests this morning at the table are ilya shapiro of the cato institute. Hes a senior fellow for constitutional studies, good morning. Good morning. We are also joined by Ian Millhiser senior constitution policy analyst, appreciate your time. Let me try to set this up by reading the beginning part of a politico piece published recently. And the piece says that infuriated by what they see as the long arm of washington reaching into their business, states are increasingly telling the feds keep out. Bills that would negate a variety of federal laws have popped up this year in the vast yorte of states with the amount of antifederal legislation sharply oun the rise during the obama sharply on the rise during the Obama Administration. Mr. Millhiser, get us started what kind of laws . Guest you have to go back to the early terrorist of the United States to understand what we are talking about so once upon a time we were 13 colonies and when we won the revolutionary war these were really 13 different countries. The Supreme Court was very aggressive about 100 years ago. There was a question of whether some things like Social Security would be constitutional. Now you are seeing some states who are saying they want to go back on that deal when they made when they became a union. The states should be allowed to overrule federal laws they dont like. Thats a serious problem. James madison at one point warned if we allow this it could bring an end to the union because if federal law isnt supreme and the constitution says it is the supreme law of the land, we arent a union in meaningful sense. Host what laws are we talking about . Guest across a whole host of policy areas, whether it be health care, resistance to obamacare, whether it be to immigration and not wanting to endorse federal law, being more strict or less strict. Marijuana, medical marijuana, other things, different policies that states have different from the federal policy gun control. They dont want federal agents trying to enforce federal laws. We have to separate out what issues are in play here because states do not have to enforce federal law. The federal government cannot force them to do so. The Supreme Court has been clear on that. What states cannot do is stop federal officers from enforcing frl law. States cant pass a law that as ian said, nullifies federal law. The question is whether a given area is the proper subject of legislation or authority by the federal or the State Government. And thats when you have Court Battles like we saw with obamacare that just concluded last year. Host you mentioned several issues. Who is putting this forth . From the left . From the right . From somewhere else . It tends to happen from both sides depending on who is in power in washington. Now because the Obama Administration has been in power for five years, generally conservative republican lawmakers around the states that want to resist federal incursion on their sovereignty. We also heard news this week for example in new orleans, the authorities there, the local authorities, not state authorities, are not going to cooperate with the federal government on immigration detentions. They dont have to enforce, they do have to allow the federal government to do their job. Host ian, how does this pushback work . What is the process for nullifying federal law . Guest its important to draw a clear law between two concepts that ilya just raised. Nullification is when a state tries to tell the federal government its not allowed to enforce its own law. The most extreme example theyll say its the f. B. I. Tries to come in and enforce the law, the state will try to arrest the february february. What is allowed if a state says its not going to contribute to something. A state decides that it doesnt want to help enforce federal immigration law, it doesnt want to prosecute marijuana offenders, if they want to do it, thats fine. They have to pass a state law saying thats what they want to do. If they want to nullify, i mean you have some state legislatures that are trying to pass nullification laws, but those laws are void. They are unconstitutional. They conflict with the provision of the constitution that said that federal laws was the supreme law of the land. And so in both cases its normally done through the ordinary legislative process, but only one of those two things that i just described is actually allowed under our constitution. Host let me put the phone numbers on the screen and read them for folks listening to their sets or by radio. Here are the numbers, republicans, 2025853881. Democrats, 5853880. Independents, 2025583882. Talking about the idea here of nullification, the effort in some states to nullify federal law. The larger discussion here about state sovereignty versus federal law. Our guests are Ian Millhiser senior constitution policy analyst for septemberer for american progress. And ilya shapiro, senior fellow in constitutional studies at the cato institute. So a broader question before we get to calls, starting with you, mr. Shapiro, how big is this effort . How much bigger is it going to get . In the ell, in the last last couple decades, this isnt a republican or democrat saying, the federal government has grown so much in so many different areas, whether you are talking about the obama or Bush Administration or before, that a lot of states are chafing in various ways whether it be enforcement of overfederalization of the laws, certain things should be left to state prosecutors, or with health care or immigration, it is pretty widespread. Lawmakers are trying to have Innovative Solutions to how they can reassert state sovereignty, which was on the down swing for many years. You see compacts being proposed. State agreements with other states up to an including forcing there is an organizing im advising calling the compact for america trying to get a balanced Budget Amendment and get a Convention Call a nifty idea to control a run away convention. There are policy innovations that states are trying to put together, again, across a host of areas left, right, which is trying to reassert the original dynamic. Not nullify. States cannot say federal law is no good. Just to rebalance the power in the country. Host ian, can you speak to federal effort pushing back . If thats the way right to look at this. What is or what can the federal government do once states put these efforts into place . Guest if we are talking about an actual nullification law, thats when the state tries to forbid the federal government from forcing its own law, those laws are void almost automatically. Guest john c. Calhoun is probably roaming the studios right now. Guest the federal official would try to enforce the law, presumably the state would try to stop them. And then it would be very easy for the federal government to get a court order to say that the state cant do that. When you are talking about things like whether or not a state is going to participate in forcing marijuana laws, then its really a matter of moral situation suasion. I dont see we are seeing a roll back in the states on Marijuana Policy or other criminal Justice Policy because of broader philosophies how big or small our government should be. I think its because the forces who want us to liberalize the marijuana laws are winning the debate. So some of the states are doing it first. Washington, colorado. Are on the vanguard. I think thats because they are the first in the line of many states and eventually the federal government will move in that direction, because thats where the American People are. I dont think its because of any sort of broad theory about who should be in charge of what. Host we have two constitutional specialists here. Before we go to calls, apply the 10th amendment to this conversation. If you can. Well put it on the screen. Its very short. 10th amendment to the constitution. Says the power not delegated by the u. S. By the constitution nor prohibited by it to the states, are reserved to the states respectively or to the people. Guest thats kind of a belt and suspenders redundancy built into the constitution. The founders were very concerned that if they would enumerate certain rights in the bill of rights, that would disparage other rights that were retained by the people, and Thomas Jefferson was especially saying that, well, we didnt give the federal government any powers to infringe these rights. So they put in the ninth and 10th amendment, they go together, the ninth says these rights we list, thats not the whole list. There are other things that are reserved to the people. And on the power side, conversely, what we do list, thats it. You dont get any more. So the 10th amendment is its own free floating further restriction on the government, but underlines if you cant find that power in the text of article 1, for example, for congress, for the legislative branch, then its not there. Host ian . Guest i think i agree with virtually all that he said. There is a list that congress is allowed to execute in the constitution. The powers are not infinite and the 10 amendment is reminding lawmakers if you cant find what you want to do somewhere on that list, it is a pretty expansive list, then you, federal government, cannot do it. Host first call for our guest, kathleen from fayette city, pennsylvania, good morning. Caller good morning, my question is, do the states have a way to Work Together to legally stop the feds from doing something that we think is unconstitutional . And my example is, obama, he wants to bind religious orlingses, religious hospitals for treating uninsured people, but that would be against our religious views. Host why dont we begin with mr. Shapiro. Guest states can get together in compacts as i said. Or to they can get together and sue the federal government the of them did in nfib obamacare litigation the Supreme Court decided last year. There are lots of ways the states can combine. They get together to manage ports all the time. And the federal governments not involved there as much. In this particular case that the caller is mentioning, there is another option in that individuals can sue the federal government or the State Government for that matter. So theres different relationships between the federal and State Governments and between the individual and state and federal governments. An individual or hospital in this case or group of hospitals, you have a class action for that matter, could file suit against the federal government for violating their individual Constitutional Rights. And the states around really party to that one way or another. Guest i agree with most of that. The lawsuit is the primary mechanism by which we ensure that the constitution is enforced. Part of what that means is that for better or for worse, when the court that is the final say over something makes its call, e are stuck with it. Its frequently about states not liking what the courts are saying trying to find another person who can have some other word on top of what the courts have said. Thats ultimately very damaging to the rule of law because there needs to be someone who is the final arbiter or else we dont know what the law is and what our obligations are under it. Host worcester, massachusetts, independent caller. Elaine, thank you for checking in. What would you like to say or ask . Caller ok. You two gentlemen, arent you from the copes foundation, think tank for the right wing . Host let knee stop you there. Guest i am in a sense. They didnt fund this for a long time and there was a lawsuit that was finally settled last yearment and now we are taking cope funding again thankfully. I think they do a lot of good work promoting premarkets and other liberty ideas, but its not the cope foundation. We have many, many donors at cato among which david cope represents one. Guest we do not think that they do great work and do not take money from them. Host anything about the topic at hand, elaine . Caller no. I just think that this is a right wing think tank going on right here in front of us. Both right wingers. Guest i would disagree with that. Guest maybe we have to do a better job explaining what we are about. Host democrat from florida. Hi. Caller could you comment on the noter nullification of voter rights in North Carolina, please. Go guest sure. Thats not nullification per se. Nullification is a state law thats passed to try to void or counteract federal law for federal law. Thats not proper. Thats unconstitutional. Whats going on in voter i. D. , there have been lawsuits filed, that will be ultimately decided in the courts. Its not nullifying Voting Rights. The states have power to regulate their elections, and there are some contention that is changing the early voting laws and the voter identification requirementses, that thats a violation of the Voting Rights act or other things. These are claims based on individual Voting Rights, and theyll be resolved by the courts. This isnt something that North Carolina is pushing back on federal law in any way as i see it. Host ian, heres a tweet. Interpret it if you can. American hero, in order for the federal government to enforce its own laws, it must first have the Constitutional Authority to make such a law. What do you think he means . Guest thats true. But the question is who has the power to make that call . And we decided very early in our republics history that it is the judiciary and ultimately the Supreme Court that has the final say on it. The problem with nullification is if you give the states the last word on what is or is not unconstitutional, then any state can unilaterally declare anything unconstitutional. And we cease to be a union in meaningful sense. Any law becomes optional. Host you mentioned at the beginning of the program, you took us back to the founding of the country, this conversation brings us up to present day with the North Carolina question. What about the history of nullification efforts between those two periods . Beginning of the country and now. What has happened if anything . Guest sure thing. Its something that people who feel they are on the losing end of the political process have brought up a few times in american history. The most famous example as mentioned was john c. Calhoun, the former Vice President of the United States, led an effort in South Carolina to try to nullify a tariff that was viewed as good for protoindustrialists in the north and not so good for farmers in the south. And that almost fought the civil war before South Carolina eventually backed down. There was certainly nullification efforts during the Civil Rights Era where segregationist states tried to prevent the federal government from enforcing civil rights law or enforcing Supreme Court decisions that insisted upon equal treatment of the races. This is something that comes up every now and then. Normally it is something that is led by political losers. And if you dont like it, most of the time your recourse is to try to become a political winner. Theres going to be an election next year. Theres going to be an election two years after that. If you dont like what the federal government is doing, your recourse is to vote for someone who will do Something Else. Host ilya . Guest thats in the short term. Over many decades going back to the new deal the constitutional balance has gotten unbalanced. A lot of the things the federal government is doing are unconstitutional. And thats why you see from time to time Court Challenges of various kinds, including in this area in the 1980s and 1990s, a couple case, the new york and prince cases for you legal junkies, that established definitively the federal government cannot force state officials to do their bidding to enforce their regulations. Its a longterm process. In the shortterm, yes, you can elect people to washington or your state legislatures that are more to your liking to pursue your policies. In the long term it takes a actual rebalancing. Ost more about our guest, ilya, cato institute, educated at princeton. London school of economics and also the university of chicago law school. Part of his career includes being a special assistant advisor to the Multinational Force on iraq on rule of law issues. Guest a lot of nullification going on there. Host ian is a senior constitutional policy analyst at th amen progress. Previously clerked for jodge eric clay of the u. S. Court of appeals, sixth circuit. Next call, gary, new jersey, independent. What would you like to say to our guests . Caller good morning. I would like to remind folks that according to the act of 1871 it states that congress has no jurisdiction outside of d. C. Thats my statement. Host who wants to take that . Guest im not familiar with that act, but the constitution is pretty clear there are a number of areas that the federal government does have jurisdiction over over the entire nation. I do want to say one thing in response to what ilya just said about constitutional rebalancing. This goes to what the last 100 or so years of constitutional law is about. About 100 years ago the Supreme Court was very aggressive. It would strike down minimum wage laws, child labor laws. There was even a question of whether Something Like