Conservatives describe President Donald Trump’s fight with so-called sanctuary cities the new nullification crisis. Commentator Mark Levin avers that “[w]e have a massive nullification effort going on in this country. Nullification is what the Confederacy did prior to and during the Civil Warnullifying decisions by the federal government.” National Review Online calls sanctuary cities “the new Confederates.”
Hans von Spakovsky of the Heritage Foundation warns that constitutional chaos is inevitable because of an “eerie” similarity between the actions of sanctuary cities and South Carolina’s nullification of the tariffs of 1828 and 1832. These commentators all want Trump to follow the lead of President Andrew Jackson, who prepared to invade South Carolina.
Are they correct?
In a word, no. Levin is wrong to claim that the Confederate States of America (CSA) nullified federal laws. The CSA withdrew from the Union, but never invoked the doctrine of nullification. The only thing that resembled nullification in the United States in the 1850s and early 1860s was the Northern states’ voiding of federal fugitive slave laws.
In trying to discredit the sanctuary city movement, conservatives show an ignorance of history and mislead the public. Big government is too often in tune with the right’s agenda, and conservatives don’t want anything to interfere with expanding federal power.
Perhaps the first mention of nullification came from Thomas Jefferson when drafting the Kentucky Resolution of 1798 in protest against the Alien and Sedition Acts. Enacted by Congress in 1798, the acts prohibited criticism of the federal government and gave President John Adams the power to deport any alien he viewed as suspicious. This legislation made a mockery of the First Amendment and deprived aliens of due process.
Jefferson wrote that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact ... to nullify of their own authority all assumptions of power by others within their limits.” Jefferson originally anticipated that Kentucky and other states, via their legislatures, would foil enforcement of the acts. However, after a consultation with James Madison, Jefferson changed his mind. Inasmuch as the people of each state, acting in separate conventions, ratified the U.S. Constitution of 1787 and also made amendments to their state constitutions, Jefferson realized that nullification was part of the constituent power and thus could only be effectuated in a state convention called for the purpose of exercising ultimate sovereignty.
When South Carolina nullified the two protective tariffs in 1832, it followed the Jeffersonian model. South Carolinians opposed protective tariffs, as Jefferson did the Alien and Sedition Acts, on constitutional grounds. They believed that the powers delegated to the general government were trust powers, rather than plenary, and were consequently limited to the object of the trust. Thus tariffs could only be levied to raise revenue for the legitimate expenses of government. The people of South Carolina called a special convention to exercise ultimate sovereignty. After somber deliberation the convention issued an ordinance of nullification voiding the tariffs.
But this did not mean legal chaos. Nullification was meant to be a mechanism of appeal. The laws were suspended in South Carolina, but only until her sister states could assemble in union-wide convention to determine whether the power to impose tariffs was plenary. If the states decided it was, South Carolina would have to obey or withdraw from the union. Thus the constitutional conflict could be quickly and amicably resolved. No convention was called, but Congress lowered the tariffs, which satisfied South Carolina and preempted Jackson’s bellicose plans.
In contrast, sanctuary cities do not base their actions on the constituent power of the people of the states. No special conventions have been held. Instead, the few in power have set a course not as a mechanism of appeal, but as matter of their own policy preferences. Put simply, there is no nullification.
Conservatives should recognize this, but they instead misrepresent nullification lest a state resurrect this doctrine to challenge the massive federal overreach that too many on the right support. Consequently, they are hard at work labeling San Francisco, Los Angeles and New York City as the new Confederates.
There are many legitimate criticisms one can raise about the sanctuary city movement, but nullification is not one of them.