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 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

Jackson also organized an armed resistance to enforce the tariff in South Carolina should a show of force become necessary and convinced Congress to confirm his authority to use force to execute federal laws by passing what is known as “Jackson’s force bill.”18 With Jackson’s efforts on display, congressmen made efforts to reduce the tariff that ignited this conflict, and Congress ultimately passed a tariff reduction in 1833. Congress’s new tariff pacified South Carolina, and the state rescinded its Ordinance in response.19 Civil crisis averted—at least for a little while.

NULLIFICATION’S REEMERGENCE

Although nullification was a hotly debated subject in the 1800s, it largely disappeared from the political landscape by the 19th century.20 In the past decade, however, nullification has returned in full force. In fact, one study identified over 1,500 proposals that relied on nullification principles in the six-year period from 2010 to 2016 alone.21 There is even a national activist organization called the “Tenth Amendment Center” that “works to preserve and protect the principles of strictly limited government through information, education, and activism,” “focusing primarily on the decentralization of federal government power as required by the Constitution.”22

Concerning Tennessee’s latest attempt at nullification, while the United States Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS on November 12, 2021,23 Tennessee legislature passing such a law, and then our leadership signing the law into effect, has drastic ramifications, both in the political landscape and for employers and businesses who, at one point, had to decide which law to follow.

While discussing the resolution, sponsor John Ragan (R-Oak Ridge) gave a brief recount of South Carolina’s history of nullification and, for lack of a better phrase, sugar-coated the state’s success rate, stating that the federal government “backed down” from South Carolina and that the theory of nullification was “still alive and well.”24 Notably, Representative Michael Curcio (R-Dickson) felt obligated to set the record straight by noting: I want to make sure this is clear, the federal government did not back down. South Carolina quit. And, unfortunately, South Carolina never really recovered from that wound. They couldn’t get any other southern states to join them in nullification and ultimately rescinded their nullification ordinance on March 15, 1833, but they continued in their behavior until, unfortunately, Fort Sumter was fired on, creating a tragedy for this country. I just want to remind everybody of that, that emulating such behavior is very, very serious and I think we need to be careful about that.25

Governor Lee did not sign SJR 9005 into effect, but he also did not veto the bill. Because Tennessee does not have a pocket veto, the resolution went into effect without his signature. Where things go from here is yet to be seen, but we do know this: nullification has very much returned to popular discourse, and states, including our own, have performed political CPR to enact legislation in its name.

COVER STORY By: Sallie Neese

Lewis Thomason, P.C.

T. Mitchell Panter

Lewis Thomason, P.C.

1 COVID-19 Vaccination and Testing ETS, Occupational Safety and Health Administration, https://www.osha.gov/coronavirus/ets2. 2 SB 9014, Tennessee General Assembly, https://wapp.capitol.tn.gov/apps/BillInfo/ Default.aspx?BillNumber=SB9014. 3 How a Bill Becomes Law, Tennessee General Assembly, https://www.capitol.tn.gov/ about/billtolaw.html. 4 SJR 9005, Tennessee General Assembly, https://wapp.capitol.tn.gov/apps/BillInfo/ Default.aspx?BillNumber=SJR9005. 5 James H. Read & Neal Allen, Living, Dead, and Undead: Nullification Past and Present, 1 Am. Pol. Thought 263, 273 (2012). 6 Id. 7 Id. 8 Nullification Crisis, American Battlefield Trust, https://www.battlefields.org/learn/ articles/nullification-crisis. 9 Id. 10 Id. 11 Id. 12 Marsha Mullin, Andrew Jackson and Nullification, Andrew Jackson’s Hermitage, https://thehermitage.com/andrew-jackson-and-nullification/. 13 Id. 14 Id. 15 Id. 16 Id. 17 President Jackson’s Proclamation Regarding Nullification, December 10, 1832, The Avalon Project, https://avalon.law.yale.edu/19th_century/jack01.asp#1. 18 Nullification Crisis, supra note 4. 19 Id. 20 Id. 21 Id. 22 About the Tenth Amendment Center, The Tenth Amendment Center, https:// tenthamendmentcenter.com/about/. 23 COVID-19 Vaccination and Testing ETS, supra note 19. 24 House Floor Session, https://tnga.granicus.com/MediaPlayer.php?view_ id=610&clip_id=25578&meta_id=626782 (last visited Dec. 9, 2021). 25 Id.