In 2010, candidate Debra Medina campaigned for the office of governor on a Nullification platform, claiming that the state of Texas had the power to nullify federal acts deemed unconstitutional. What was the basis of her claim, and does a nullification argument have any merit?
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There are at least two theories that would allow a state to nullify a federal law. One of these is more common today while the other was more commonly used in the time before the Civil War.
Today, people who believe in the idea of nullification argue that the 10th Amendment supports the idea. The 10th Amendment says
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
To many people who agree with a Tea Party-style distrust of the federal government, this amendment implies that states hold the right to nullify federal laws that they think are unconstitutional.
In the time before the Civil War, states tended to claim that they could nullify federal laws because the Constitution was an agreement made by the states. They argued that this meant that the states had the right to override the federal government because they had, in essence, created it. Those who opposed nullification argued that the Constitution was an agreement between the people of the country as a whole and the states had no right to override the federal government.
There is essentially no one outside the anti-government movement who seriously believes that nullification is legal. The argument for nullification has never been accepted in the history of our country. If nullification were legal, it would, in effect, allow states to opt out of being part of the United States. This is clearly not going to be allowed.
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