The Texas “Nullifcation” Law

Jonathan Adler points out that the Texas law is not nullification at all, because all it does is prevent state officials from enforcing any federal gun laws passed after a certain date. A lot of states, including Pennsylvania (HB 357), have bills proposed that would make even the federal government enforcing federal laws subject to criminal sanctions. This would not hold up in Court in our current legal system, so Texas decided not to go that far.

In reality, if state officials can’t enforce federal law, for all practical purposes, enforcement would be impossible. The most likely scenario you’d likely be found to be violating the law would be at a traffic stop, and traffic laws are state laws. While it would not be “nullification” as we generally think of it, preventing state authorities from enforcing a federal law, for most practical purposes, renders that law null. There simply aren’t enough federal agents to enforce any law without the aid of state and local authorities.

I tend to think the current circumstances call for what Texas is doing, rather than what is being proposed in Pennsylvania. A real nullification bill might be warranted if gun bans are on the table, and state authorities, and state courts, are willing to go along with the whole idea, but I feel confident enough in how badly we beat the gun and magazine bans, and I have no faith that the state authorities or state courts would go along with any nullification scheme, especially under current circumstances.

5 thoughts on “The Texas “Nullifcation” Law”

  1. Out of curiosity what federal laws do you think that state and local LEOs enforce every day?

  2. I’m wondering how long it would take before the feds would use their economic power to punish non-cooperation by a state. They could always withhold federal law enforcement funds, etc.

    For a historical analogy, when the feds were forcing the states to adopt mandatory auto emission inspection laws, c. 1981 – 1982, Pennsylvania put up resistance, at one point adopting the mandated law but providing for a fine for non-compliance of something like $3. The feds said that was NFG, and dictated not only the law, but the penalties for non-compliance.

    Clearly that far exceeds their constitutional authority. But they did it by saying, here are the criteria to be met before you will receive your quota of federal Transportation funding. The General Assembly knuckled under so fast our heads spun.

    If I’m not mistaken, they used the same tactic in a slightly later time-frame to impose photo drivers licenses, which today (as de facto internal passports) everyone takes for granted. That time, the General Assembly barely a complaint.

    1. That was before the Obamacare ruling. One of the enforcement mechanisms the Feds proposed to force the states to expand Medicare (which requires the states to spend more money) was to threaten to cut off their existing Medicare money from the Feds. Roberts ruled that they couldn’t use that mechanism to force the states to expend resources. It will be interesting to see that tested in some other arenas.

  3. That’s a very interesting question, ParatrooperJJ. Did some VERY quick research and it seems local and state enforcement of federal laws and regulations is mostly in the area of consumer (and perhaps environmental) protection and immigration.

    Immigration presents an interesting subcategory since there appears to be some federal ability to PREVENT local or state enforcement of federal law.

    Given the prevalence of “sanctuary” cities and such for illegal immigrants it seems local LE, at least, is fully prepared to refuse to enforce federal law.

    My brief research suggests that state and local enforcement of federal law is, however, largely a voluntary matter.

    I claim no expertise, just found your question interesting enough to look into.

  4. Interestingly, Cook County claimed a type of nullification power of its own. It said that it would not be bound by the Seventh District Ruling on less-restrictive gun laws until the Supreme Court ruled on the issue.

    The ramifications are fascinating. For example, while people carrying in violation of the overruled Illinois regulations would be arrested, possibly tried and convicted, and sent to jail, the police involved would be in contempt of court. Of course, that is only relevant if we had an honest DOJ to prosecute them.

    But…the potential for civil suits under 42 USC 1983 is staggering – this could bankrupt Cook County and Chicago completely. Think Detroit.

    Not much longer until the show starts. I’m stockpiling popcorn.

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