Nullification and secession

Let’s make Republicans in Congress vote for or against them.

Remember when Moveon ran that stupid “Gen. Betray-us” ad? It took about a nanosecond for the Republicans to push resolutions of disapproval through both Houses of Congress. (Here’s the text of the Senate version, which condemns “the liberal activist group,”)

Now the Georgia Senate has passed a truly lunatic resolution that proclaims that any action by the Congress, the President, or the federal courts that exceeds an absurdly curtailed list of expressly delegated powers (as understood by the Jeffersonians of the late 1790s) would constitute a dissolution of the Union:

BE IT FURTHER RESOLVED that any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America.


That should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually. Any future government of the United States of America shall require ratification of three quarters of the States seeking to form a government of the United States of America and shall not be binding upon any State not seeking to form such a government.

The resolution also claims:

that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits:

That is, the Georgia Senate is claiming for the State of Georgia the right to nullify any action of the Federal government which the Georgia government regards as ultra vires.

Apparently the resolution was rammed through at the end of the session by the Republican leadership under an anodyne title, with some of the Senators who joined in the near-unanimous vote never having read it.

This follows Gov. Rick Perry’s (absurd) claim that Texas retained the right to secede from the Union in the treaty of annexation. (That claim seems to have helped Perry pull even in polling for next year’s Texas Republican primary for governor, a race where he had been far behind.)

So how about doing to the Republicans on this what they did to the Democrats on “betray-us”: make their Congressmen and Senators choose between dissing a part of their base or seeming unpatriotic? A resolution affirming that the Union is indissoluble and that the decisions of the federal courts on Constitutional issues are the law of the land, and denouncing “conservative extremists” who say otherwise, would be hard for some Republicans to vote either for or against. Good!

Footnote Somewhat less insane resolutions have passed the legislatures of Oklahoma (where the governor issued a veto) and Alaska (where the governor has not yet acted). Less insane because they merely claim that some federal actions are unconstitutional and “serve as notice and demand” for the Feds to cease and desist, rather than claiming that those actions terminate the Federal government.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: