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Who Is Leading the Charge? Nullification Legislation in the American States

Sat, September 2, 4:00 to 5:30pm, Westin St. Francis, Hampton

Abstract

The early twenty-first century has been a period of elevated tensions between the states and the national government. One manifestation of this intergovernmental conflict is the recent proliferation of state legislative proposals to “nullify” national policies. This legal theory, which emerged in the eighteenth century and laid the foundation for the Civil War but has never been upheld in the federal courts, proposes that states have the ability to invalidate national actions that they deem unconstitutional. Its historical and contemporary proponents portray the doctrine of nullification as a check against the potential tyranny of the central government, while opponents describe it as inherently destabilizing.

Over the past few years, state legislators have introduced thousands of bills that call for the “nullification” of national policies. Hundreds of these proposals have gained enactment. This paper develops and analyzes an extensive original dataset of “nullification” legislation that covers all fifty states from 2010 to 2016. It focuses on twelve issue areas that are identified by nullification proponents as important. Many of these areas have social justice implications, from “right to try” bills that allow terminally ill individuals to use potentially lifesaving medications that have not been approved by the Federal Drug Administration to measures addressing police militarization, marijuana legalization, the Affordable Care Act, Common Core, and individual privacy. In all, the dataset includes approximately 2,500 individual pieces of legislation that address some of the most pressing matters in contemporary American politics. Some proposals use strong language that flatly labels national policies unconstitutional, others prohibit the use of state resources or personnel to implement national policies, and some impose strict procedural requirements that are meant to hamstring the national government.

This paper attempts to isolate the factors that make state legislators more or less likely to submit nullification legislation. Specifically, we merge our dataset of bills with individual-level data on a variety of characteristics that include the party of the legislator, seniority, Tea Party affiliation, and committee appointments. Our dependent variable is a count of the number of nullification bills introduced by each lawmaker in each state from 2010 to 2016. The results of our empirical analysis suggest that the introduction of nullification legislation by state legislators is not driven entirely by partisanship and ideology. Legislators of both parties from across the ideological spectrum introduced nullification legislation during our period of analysis, and other factors like seniority are especially influential.

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