A Lesson on the Tenth Amendment:
Nullification versus Interposing and when to use each
State Nullification and State Interposing are often discussed under the heading of nullification but they are in fact different techniques used in different situation to limit the federal governments unconstitutional over reaching. These terms are derived from the Kentucky and Virginia Resolves (resolutions) of the legislatures of Kentucky and Virginia in response to the federal government’s enactment of the Alien and Sedition acts of 1798.
Jefferson considered any act by the federal government beyond its delegated powers to be “…unauthoritative, void, of no force…” Six years later Chief Justice John Marshall would so hold in the case of Marbury v. Madison.
A nullification statute or action is one which negates a federal statute etc., directly. This occurred (temporality in Kansas) when many of the states refused to respond to federal law and regulations by enacting statutes requiring state agencies to comply with the unfunded mandates of the REAL ID Act. Because many of the states simply refuse to comply with the federal government’s wishes for the states to set up an infrastructure for a global identification and citizen tracking system, the federal government lost the practical ability to require citizens to participate in this global identification and tracking system.
Nullification is effective when the federal action, including enforcement provisions, is not directed at the citizens but the states.
However, when the federal government’s laws and regulations are directed at the citizens then the only effective way for the states to negate the federal law i.e., protect their citizens’ rights and liberty, is for the states to interpose themselves between the citizen and the federal government. Madison believed that the states had a “duty” to interpose in the case of federal over reaching.
Interpositioning by the state ameliorates or protects the citizen from the risk of punishment by the federal government by stepping in between the citizen and the federal government and tells the feds “Not here, not now!” The state draws the figurative line in the sand and says it will intervene to protect its citizen’s rights against an abusive and over reaching federal government. For instances some states have passed Freedom Firearms Acts (FFA) which authorize state law enforcement to arrest federal agents that attempt to enforce federal firearms laws within the scope of the state’s FFA.
Some states, I am told, have passed similar interposing Heath Care Freedom Acts which prohibit and criminalize a state official’s acts assisting a federal agent to attach or levy against a state citizen because of a violation of the “Obama Care” law.
This legislative session we have two “state sovereignty” bills which purport to protect the citizens of Kansas from federal over reaching i.e., unconstitutional actions: the Kansas Freedom Firearms Act and the Health Care Freedom Act (a resolution). Note that the federal firearms laws are directed primarily at persons who buy or sell firearms as a business. For instance it requires one to seek the federal government’s approval to sell a firearm to another citizen i.e. run a Brady check. If a person fails to comply they can have their federal firearms license revoked, be fined, imprisoned and have their firearms confiscated. The federal law also restricts the possession of certain types of firearms and accessories.
The “Obama Care” act requires citizens to buy health care insurance and also mandates the type of coverage one buys. It enforces this by assessing a penalty, collected by the IRS, if the person violates either provision.
I want you to test your new found knowledge. Go read the Kansas Firearms Freedom Act and the Health Care Freedom Act and then come back here and answer these questions:
1. To whom are these federal acts directed, the states or the citizens,
2. What is the proper remedy to address the federal government’s over reaching in each of these areas, nullification or interposing,is it being used,
3. What is the language in each of these Kansas bills that nullifies or interposes on behalf of the citizens?
Post By Richard D. Fry