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Rumblings from ardent states' rights advocates grow louder in the wake of perceived federal overreach in such areas as health care, immigration reform, marijuana regulation and gun control.

Indeed, on March 13 the Oklahoma House voted overwhelmingly to invalidate President Barack Obama's signature legislation, the Affordable Care Act. That process is known as nullification. But is it constitutional?

In a nutshell: (1) State officials need not enforce federal laws that the state has determined to be unconstitutional; nor may Congress mandate that states enact specific laws. But (2), states may not block federal authorities who attempt to enforce a federal law unless a court has held that the law is unconstitutional. And (3), individuals are not exempt from prosecution by the federal government just because the state where they reside has legalized an activity or pronounced that a federal law is unconstitutional; if convicted, individuals can attempt to vindicate their constitutional rights in court.

Fans of nullification count on the states to check federal tyranny.

Let's examine each of those questions:

First, are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is "No."

In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

In the 1992 case, New York v. United States, the Court ruled that Congress couldn't require states to enact specified waste disposal regulations.

The second question is more difficult: Can a state impede federal authorities from enforcing their own law if the state deems the law to be unconstitutional. The answer is "No," although more radical nullification proponents would disagree. They point to the Kentucky and Virginia Resolutions of 1798 and 1799, in which Thomas Jefferson and James Madison asserted a state's right to nullify the Alien and Sedition Acts.

But consider those resolutions in context: Jefferson and Madison had argued that the states must have the final word because the Constitution had not expressly established an ultimate authority on constitutional matters.

Four years later in Marbury v. Madison, Chief Justice John Marshall resolved that oversight. He wrote: "It is emphatically the province and duty of the judicial department to say what the law is." Since then, instead of 50 individual states effecting their own views regarding constitutionality, we have one Supreme Court establishing a uniform rule for the entire nation.

The Framers concurred. In Federalist 78, Alexander Hamilton had written: "\ limited constitution ... can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void." Madison shared that view. He wrote: "(I)ndependent tribunals ... will be an impenetrable bulwark against every assumption of power in the legislative or executive."

Even before Marbury, the Virginia General Assembly had passed Madison's Report of 1800. It acknowledged that states can declare federal laws unconstitutional; but the declaration would have no legal effect unless the courts agreed. Here's what Madison wrote: State "declarations ... are expressions of opinion, (intended only for) exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect."

Madison also published Notes on Nullification in 1834. There, he wrote that an individual state cannot unilaterally invalidate a federal law. That process requires collective action by the states. Similarly, Jefferson's Kentucky Resolutions had described nullification as an act by "the several states" that formed the Constitution.

Moreover, seven states rejected resolutions similar to Virginia's and Kentucky's; six states passed alternate resolutions holding that constitutionality was for courts to decide; four states took no action. No other state went along with Virginia or Kentucky.

Since then, nullification attempts have failed on three occasions: In 1828, South Carolina tried to nullify two national tariffs. President Andrew Jackson proclaimed nullification to be treason; Congress authorized Jackson to send troops, and the state backed down. In 1859, the Supreme Court rejected nullification in Ableman v. Booth.

Booth had frustrated recapture of a slave in violation of the Fugitive Slave Act. Wisconsin's Supreme Court held the act unconstitutional, but the U.S. Supreme Court reinstated the conviction. In 1958, after southern states refused to integrate their schools, the Supreme Court in Cooper v. Aaron held that nullification "is not a constitutional doctrine ... it is illegal defiance of constitutional authority."

Fans of nullification count on the states to check federal tyranny. But sometimes it cuts the other way; states are also tyrannical. Indeed, if state and local governments could invalidate federal law, Virginia would have continued its ban on inter-racial marriages; Texas might still be jailing gay people for consensual sex; and constructive gun bans would remain in effect in Chicago and elsewhere.

Finally, question #3: If a state deems a federal law to be unconstitutional, what's the proper remedy? The answer is straightforward. Because the Supreme Court is the ultimate authority, the remedy is a lawsuit challenging the constitutionality of the suspect federal regulation or statute.

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Yes, States Can Nullify Some Federal Laws, Not All

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Rumblings from ardent states' rights advocates grow louder in the wake of perceived federal overreach in such areas as health care, immigration reform, marijuana regulation and gun control. Indeed, on March 13 the Oklahoma House voted overwhelmingly to invalidate President Barack Obama's signature legislation, the Affordable Care Act.

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Undermining Gone Wrong: Self-Destruction of Virginia’s Public Education by Uneducated Whites 

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Undermining Gone Wrong: Self-Destruction of Virginia’s Public Education by Uneducated Whites 

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The opposition of white southerners to the integration of public schools in the south during the 1950’s was met by the actions of officials in the Virginia Legislature who believed that both Negro and white education would suffer if whites decreased funding to public schools after the Supreme Court’s ruling. David Mays, a member of the Senator Gray’s commission in Virginia’s Legislature, emphasized that due to the Supreme Court’s bar against segregation, there would be a “shutdown of public schools in some areas regardless of the Legislature’s actions… Simply because the people who put up the tax money will not put it up anymore.” (Integration Curb PDF) By refusing to contribute to the public education’s tax funds, uneducated whites in Virginia would destroy the foundation of their own education, not just that of negros, and the members of the commission used this idea to communicate to readers their plans to prevent that and support private schools.

A characteristic of whites in the south, including Virginia, that impaired their ability to make logical decisions regarding their tax contribution was their lack of education. A survey conducted by The Catholic Digest in June 1956, only six months after the events of the Virginia Legislatures meetings, on the relationship between level of education and support for segregation in the white American population (unbiased to religious affiliation), found that “among Southern whites with eight grades or less, 87 per cent wanted segregation, while 54 per cent of Southern whites with college educations favored it.” This meant that approximately 30 percent of whites developed a new stance on segregation following higher education. This statistic revealed that whites in the south who had a higher level of education understood politics better, and had a clearer outlook on segregation and how it affected them. This allowed them to form an educated stance on segregation in schools between whites and negroes.

In Virginia, the presence of uneducated whites meant that impulsive decisions were made regarding the Supreme Court’s ruling on segregation, which caused whites to stop giving their tax money to the public education sector. The whites in Virginia thought that by keeping their tax money, they would prevent the integration of negro students into their schools, and they would successfully undermine the demands of the federal government. However, their lack of knowledge of the public education system was a detriment to their cause, as the decision to stop paying taxes would destroy public education for whites as well, leaving private schools to carry the burden of the student population. Unfortunately, white Virginians were influenced by customs and other white Virginians, rather than logic and knowledge, which caused them to ignore this.

This incidence of white Virginians withholding their taxes was a result of Virginia wanting to maintain power over segregation within the state. Virginia was attempting to undermine the ruling of the U.S. Supreme Court and weave its way into an education system that continued to favor whites while still “complying” with federal laws. Still, education in Virginia would suffer if the actions of those whites who were uneducated on the matter chose to punish public education, rather than support private education.

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1956 Survey On Education Level of Whites

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The South Weasels its Way Around Integration

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The South Weasels its Way Around Integration

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In 1955, the Virginia Legislature assembled to discuss a plan that would prevent the mandatory integration of white students and negro students into the same classroom. Governor Thomas B. Stanley spoke in front of the house and Senate to describe his plans to navigate around the decision made by the Supreme Court to desegregate public classrooms. He also scheduled a meeting after the hearing to set in motion preparations that would amend the states constitution, and allow public funds to be used to educate students in private schools. He proposed this bill claiming that it would “safeguard our rights and maintain the education system”.  The main change his bill would focus on was providing tuition grants for parents of private schools  that supported abolishing public schools due to forced integration. Some states had already amended their constitution to allow these tuition grants, including Mississippi and Georgia. While in the hearing, the governor also applauded the work of the special studies commission lead by Senator Garland Gray, which had the goal of avoiding forced integration in public schools and maintaining educational opportunities for kids in Virginia. Though he had many supporters at his hearing, he was also met with resistance by individuals, including  Dr. John H. Marion, who was the head of the Virginia Council of Human Relations. The goal of Dr. Marion's group was to promote compliance of the supreme court’s decision to end segregation. He argued that Governor Stanley's bill would deprive many children a fair education because of the lack of adequate private school facilities.

Many times in African American history, whenever major victories for rights were won through supreme court, the states would find ways to undermine these rulings and keep society from progressing. In this case, the governor was trying to get around the ruling of Brown VS. Board, which ruled segregation in public schools unconstitutional. Giving tuition grants to white parents who would not want to have their kids attend integrated schools would allow them to attend legally segregated private schools. Many southern government officials, including the governor, were willing to fight integration even if it was considered unconstitutional by the highest court in the nation. This defiance of national laws has happened multiple times throughout history when concerning African Americans. An example of these actions of defiance were the Black Codes that were enacted in the south. These laws, such as poll taxes, were meant to stop blacks from voting because many of them were poor. Convict leasing, another part of the Black Codes, was another way of forcing negroes back into slave labor. Both slavery and segregation were a key part of southern culture. History shows when the supreme court ruled against African American aspects of life that were a big part of southern culture, the states always found a way to work around the ruling though state laws for as long as possible. The only way that Africans Americans could have forced compliance with the supreme court ruling was to fight the southern states politically, like Dr. John H. Marion and the Virginia council of Human Relations did.

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U.S. States Won't Back Down: Why is This Integration Important Now?

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U.S. States Won't Back Down: Why is This Integration Important Now?

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By law, if states in the U.S. create legislation that explicitly conflicts federal law, the federal law prevails. This was the case during the Civil Rights era and integration, but was worked around by Virginia State legislature. Giving tuition grants and refusing to pay taxes are two examples of how lower levels of organization can undermine enforcement of federal laws. This was not a problem of solely that time period and that situation. There are several current conflicts between Federal and state law being debated over in modern day society discussed in the CATO article

One of these conflicts is the marijuana law. Marijuana is classified by the federal government as a schedule 1 drug, along with drugs like heroin and LSD.  At the same time, 20 states have passed legislation legalizing marijuana for medical purposes with 2 even legalizing for recreational purpose. States had created legislation directly conflicting federal law, yet, in these cultures, marijuana possession is not a crime with a prescription.

Another example of conflictual laws between the state and federal governments was gay marriage. Gay marriage rights were held by states up until 2015 with the Obergefell vs Hodges case. States were denying gays the right to vote in certain states. Federal law then made it legal to recognize gay marriage, thus overpowering state legislation saying otherwise. The federal law prevailed over state laws, yet, legislators in Louisiana and Mississippi both attempted to stall the issuing of marriage licenses to homosexuals. This law was met with opposition by the states immediately, and still today. Same sex couples are not recognized on some states' taxes and these couples cannot file jointly creating financial problems for homosexual married couples within that state.

States have incredible amounts of power. With power comes conflict. States residing over national laws or going around national laws has and will always be present. National government has the final say and laws that are made prevail over states. However, states use their own power to influence enforcement of these laws. This was the case for integration in the Civil Rights Era as well as the Gay Rights and Marijuana legislation struggles.