What is secession?
Secession is the voluntary withdrawal of person or group from an organization or alliance.
Can states secede?
Yes, de jure, and maybe, de facto. There is no provision in the U.S. Constitution prohibiting secession of a state. The Tenth Amendment provides that “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.” The Eleventh Amendment (which I mistakenly cited in an argument recently…but I have a good excuse) doesn’t prohibit secession, either. That being said, in Texas v. White, 74 U.S. 700 (1869), the Supreme ruled otherwise. So what? It’s a Reconstruction-era kangaroo court decision that is unsupported by either the text of the constitution or by American tradition. It is even less defensible (constitutionally, not morally) than the nonsensical pro-abortion decisions based on “emanations” and “penumbras” that the Supreme court routinely issues today. So a strict commonsense reading of the actual text of the US Constitution permits a state to secede. Several northern states almost seceded at the Hartford Convention (1814). Several southern states did secede, but …. well … they didn’t manage it very prudently and they started shooting too soon, and we all know what happened after that. But there’s reason to believe that a better orchestrated secession plan might work. Might work, that is.
What is "nullification"?
Nullification could be one of two things. It could either be the refusal by the state government to enforce federal law (there are probably more precise technical terms, but for clarity we'll call this "soft nullification") or it's the a declaration by the state declaring that a federal law is inapplicable to its citizens (we'll call this one "hard nullification").
Can states nullify federal laws?
Unlike secession, which is not proscribed by the letter of the US Constitution, there is a reasonable argument that nullification is unconstitutional. Article VI of the US Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Think in the Constitution or Laws of any State to the Contrary notwithstanding.” Sure, you can argue that laws Kansas nullifies aren’t made “in pursuance of” the Constitution. But the fact of the matter is that nullification is directly proscribed by the text of the Constitution itself, and you have to get into the muck of modern constitutional theory and jurisprudence to make a case. Good luck with that, guys!
So what's wrong with soft nullification? It seems to be a less confrontational, less drastic option than secession, doesn’t it?
What I’m calling soft-nullification—a state’s mere refusal to enforce an obnoxious federal law—is meaningless these days. Nullification might have had some effect in some instances prior to the War Against the States (the so-called Civil War), when the only federal officials around town were the postmaster and the occasional customs agent down at the docks. Back then, the federal government depended on state cooperation for enforcement of the few laws it had. These days, though, state cooperation in enforcing federal laws is unnecessary and irrelevant. The feds have the apparatus to enforce its laws itself. How many gun-and-badge-carrying federal law enforcement officers are there just in Kansas these days? Plenty, brother, especially thanks to the "War on Terror." And how many non-gun-toting federal officials are there who can shut economic activity down at the push of a button? Plenty more. The way things work, the federal government has direct control and access to all aspects American life, and it doesn't need state help for enforcement.
So you think it’s bad now? In a soft nullification, you’ll get a rapid growth in federal law enforcement hires to fill any state's enforcement void, if not a quick and violent imposition of martial law by nationalized guard imported from another state (think Missouri….think Quantrill). The framework for increased direct federal law enforcement is already in place (read up on FEMA plans and the latest papers coming from Ft. Leavenworth War College faculty) and there are plenty of stupid, power-hungry people (Kansans included) ready to sign on to be the federal muscle. If you don’t believe, me, look at how quickly the TSA turned tens of thousands of former fast food employees into puffed-up, groping goons.
What about hard nullification? That still seems less confrontational and less drastic than secession, right?
Hard nullification would declare that an obnoxious federal law in inapplicable to a state or its citizens. In order for hard nullification to work, the state would have to protect its citizens from the effects of the federal law. So how would that work, given (as we said above) that there are a whole bunch of gun-and-badge federal law enforcement officials right here in Kansas, and many more guys in Washington and northern Virginia with their finders on various buttons?
· Kansas nullifies a PATRIOT Act or Dodd-Frank regulation for state banks? A state bank stops complying, and the bank president shows federal regulators the door, with a smile on his face. Within minutes, someone at the Treasury Dept. pushes a button that shuts off the FedWire and ACH systems, so that bank ceases to function. If the bank attempts to continue its business anyways, then armed Treasury agents come in and arrest the bankers. And if the bankers, resist, the armed Treasury agents shoot them.
· Kansas nullifies the Affordable Care Act and instead enacts real health care freedom for Kansans? All fine and dandy, until a Kansan refuses to pay the new federal health care "tax/penalty/tax." Some bureaucrat in Washington pushes a button, and that guy’s liquid assets are frozen. Then Treasury agents try to foreclose a tax lien. Or else they try to haul him off to jail when he refuses to pay the penalty. Or they shoot him if he resists arrest--justifiably, under Kansas law--because their authority has been nullified.
· Kansas passes commonsense environmental laws that contradict regulations under the Clean Air Act or RCRA? Poof! The EPA pushes the KDHE aside. Any Kansas business owner who continues to follow the Kansas law and thumb his nose at the feds gets cited, and when he ignores the citation, the EPA has calls in the FBI agents to shut the business down and arrest him. The business owner resists arrest because Kansas has said the federal law is nullified, so they shoot him.
· Kansas decides that you don’t have to be fondled by the TSA and get a dirty picture taken of you in order to board a commercial flight from Wichita to Goodland (why anyone would fly commercial from Wichita to Goodland is beyond the scope of this question, but really…bear with me). The response here is perhaps more immediate and dramatic the USAF scrambles and shoots the plane down.
The fact is, too much law enforcement power is already in Washington's hands for hard nullification to work. The only way hard nullification has any value if Kansas makes it a criminal act for a federal officer to enforce the federal law in Kansas, and is willing to step in and nab the fed when he tries. Think of California, where pot is legal, you don’t hear of any county sheriffs defending the rights of Californians to get stoned, do you? The DEA busts down the doors of a dispensary and hauls everybody off while the Sonoma county sheriff’s deputy is getting a Bismarck with sprinkles and a large coffee “regular” at Dunkin’ Donuts in Sebastopol, not defending his constituents against federal depredation.
What would happen if suddenly state and local officials did try to protect Kansans from the feds in a hard nullification scenario?
Suppose Kansas nullified the PATRIOT Act and allowed state banks to open accounts to whomever walked in, just like in the old days. Suppose three or four armed federal agents descend upon the Jingo State Bank after it has failed to send in its PATRIOT Act reports for a few weeks. Suppose that Miami county Sheriff JoeBob Jones stops the feds and demands that they release the bank president that they’ve just taken into custody. The feds decline, draw their guns, and Sheriff Jones shoots them…justifiably under Kansas law. Well, more feds descend with more firepower, hunt down Sheriff Jones and shoot him. Tensions rise, and the local citizens get rowdy and rally to defend themselves. More feds come, and maybe even a nationalized unit of guard troops get pulled in to occupy the area under martial law. Then a small percentage of those guardsmen may decide it’s as much fun to shoot Kansans as it was to shoot Iraqis and Afganis. Naturally, the folks of Miami rise to defend their own, and you’ve got a mini insurrection. Remember…as I said in my post below, the little guys can only make things worse by fighting back. Here’s where hard nullification results in an in an isolated and amateur conflict, not a coordinated or professional effort at repelling an aggressor.
Seems to me there's more shooting going on in a hard nullification scenario than in a secession scenario, and it's a lot more random and unproductive. All the more reason to seriously discuss secession...if you have liquor and cigars handy.
More to come….