NULLIFICATION PROCLAMATION: A HOUSE DIVIDED “We the People”: the first three words written in the United States Constitution, and the ideal that set the foundation for opposition to state nullification. Those three little words—simple and unassuming yet recognized by many beyond the fifty states—were a bold proclamation by the Framers that the United States Government exists to serve its citizens. Or, so we’ve always thought. On November 4, 2021, the Biden Administration unveiled the long-awaited OSHA rules requiring large employers to mandate their employees to receive the COVID-19 vaccination or submit to weekly tests.1 This Emergency Temporary Standard (“ETS”) required, among other things, that large employers mandate face coverings among unvaccinated employees, grant employees paid time off for the time it takes to obtain the vaccination, and verify employees’ vaccination status. Before OSHA’s final promulgation of the ETS, the Tennessee General Assembly conducted a three-day special session to address the COVID-19 pandemic at the end of October. Of significance, both chambers passed Senate Bill (“SB”) 9014 and sent it to Governor Lee for executive action. Several provisions of SB 9014 are in stark contradiction to the ETS mandates, and the bill effectively prevents government entities and private businesses from instituting employee vaccine mandates.2 On November 12, Governor Lee signed the legislation into law. Along with SB 9014, a joint resolution, SJR 9005, also passed both chambers and was sent to Governor Lee’s desk. A resolution differs from a bill in that it does not “become law but simply serve[s] to express the views of the majority of one or both houses of the Legislature.”3 SJR 9005 proclaimed that Tennessee’s leadership has the right to “enact such legislation as it deems necessary to nullify actions taken by the federal government regarding COVID-19 when those actions violate the United States Constitution.”4
NULLIFICATION’S HISTORY This word “nullify” in SJR 9005 is no random verb. Nullification is a legal doctrine, which posits that states have the authority to nullify, or void, federal acts they find unconstitutional within their sovereign borders. “Federal acts” can include laws, regulations, judicial decisions, executive actions, or treaties.5 Moreover, the concept of nullification goes beyond simply declaring that a federal act is unconstitutional but entails a state’s acting on that ruling by blocking the implementation of the federal law or regulation in question within that state’s border.6 The Constitution, albeit ambiguously, separates powers reserved to the states from powers vested in the federal government, with concurrent (or shared) powers peppered within. (Thank you, Schoolhouse Rock!) Naturally, then, advocates of nullification state that the theory can be implemented when the federal government invades the province reserved
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to the individual states or, even though properly sanctioned by the Constitution, discharges its federal powers inappropriately.7 Nullification is not a modern concept. It dates back to the early 1800s and rose to its height in what is commonly called the “Nullification Crisis.” Nullification gathered steam with the rise of the federal government’s implementation of tariffs to guard American industry by curbing foreign competition.8 The first tariff was relatively low but they continued to rise each year, culminating in the “Tariff of Abominations” of 1828.9 The Tariff of Abominations largely left the southern states unprotected and was met with great resistance in foreign markets.10 So much so that foreign markets blocked the sale of American cotton, which led to economic issues in the South.11 Southern states, most prominently South Carolina, resented these protectionist tariffs and from this resentment, support for nullification gained ground. During nullification’s initial heyday, the leading man in the movement was South Carolina’s John C. Calhoun (playfully coined by these writers a “Dis-Founding Father”). Calhoun authored several writings advocating for state nullification power, including South Carolina Exposition and Protest in 1828.12 Because he was Andrew Jackson’s Vice President at the time, Calhoun published the pamphlet anonymously, zealously advocated against the tariff, and ultimately laid the foundation for nullification theory.13 Calhoun supported his argument for the nullification power through an interesting interpretation of the Constitution: that the federal government was formed not by the people but through agreement of the individual states. In other words, what the states giveth, the states taketh away. Nullification divided the White House. Calhoun was an unwavering supporter of states’ rights, and while Andrew Jackson was also a states’ rights supporter, he was not an advocate of state power at the expense of the Union.14 Further, Jackson—unlike Calhoun—believed firmly that the federal government’s power came from the people, not the individual states. Ultimately, when the Tariff of 1832 was passed and brought no relief, South Carolina passed the Ordinance of Nullification in November of the same year.15 The Ordinance declared the Tariffs of 1828 and 1832 void within South Carolina’s borders on the ground that the Acts were unconstitutional.16 President Andrew Jackson took immediate action by issuing the Nullification Proclamation, noting his opposition to South Carolina’s decision and which stated, in part, I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.17
DICTA
January 2022
