Today seems like as good a time as any to discuss nullification and secession.
Writing last July, Kirkpatrick Sale claimed that nullification—individual states choosing to ignore and/or refusing to enforce federal laws—is already taking place. His first example was the reaction to President Trump's withdrawing America from the Paris climate accords:
What was amazing about watching two dozen states and several hundred cities defy Donald Trump’s decision to take the U.S. out of the Paris Climate Agreement was that so little was made of it. It represented open defiance of the national government and a commitment to follow the principles of a treaty that our elected leader has specifically rebuked. I don’t know what you’d call it, but it looks a lot like nullification, the principle that any American state can refuse to obey certain chosen government laws and policies.
Nullification. That’s quite a strong position. Some might even call it treason.
Sale provided further specifics about this "open defiance of the national government"; but for all that, he was wrong on the underlying issue. States and cities that declare their own climate-change principles and policies have every right to do so; there was, and is, no federal statute prohibiting them from such actions. No federal law is being defied; the Paris climate accords, approved by President Obama but not by Congress, were never legally binding.
Sale's second example, however, seems actually to support his argument:
Let’s look at the sanctuary movement, which stands clearly in opposition to U.S. laws and practices and specifically to the Trump administration’s demand that cities cooperate with Immigration and Customs officials or face a cut-off of all federal funds. At the moment there are an estimated 476 counties and cities that have declared that they won’t follow the 1996 law that requires cities to cooperate with ICE — and 50 of them were added to the list after Trump’s January executive order threatened to defund them — plus what the Center for Immigration Studies lists as six states (California, Oregon, North Dakota, New Mexico, Colorado and New York) that declare themselves to be sanctuary states.
That’s nullification again, and on a massive scale.
Progressives applaud the stance taken by sanctuary cities, but it seems undeniable that such cities are, de facto if not de jure, nullifying federal laws and refusing federal mandates.* Sale also cites the legalizing of marijuana by various states and localities, an issue which may be somewhat less clear-cut but which still amounts to nullification in the broadest sense of the term.
For Kirkpatrick Sale, this all came as welcome news; he has been part of the "Second Vermont Republic" secession movement for years. Last year, he urged the rest of the country to follow:
As a confirmed decentralist and anti-authoritarian, I applaud this whole movement toward what might be called states’ (and cities’) rights, and I would like to see such a movement spread, achieving by de facto secession the right to self-determination and self-government that alone promotes liberty. And for those of you...who may at first denigrate this movement, you might consider what would be the appropriate action if the offshore drilling companies actually decide to start their destructive exploration projects off the sea island coast. I can think of nothing better than the local sheriffs and deputies showing up to carry out the wishes and ordinances of the local cities and towns and refuse the oil giants permission.
Note how easily Sale goes from approving nullification to justifying secession to promoting the ultimate legal authority of "local sheriffs and deputies". That latter authority, of course, is also promoted by the likes of disgraced ex-sheriff Joe Arpaio and by those in the "Constitutional Sheriffs Movement" who insist (mistakenly) that local sheriffs rather than state or federal agents are the highest authorities in the land. Cliven Bundy and his brood support the Constitutional Sheriffs Movement, which ought to tell you all you need to know about it.
I'm a believer in localism; I'm a believer in decentralization; I'm a believer in the principle of "subsidiarity," which holds that "[social] matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority." ** I have long been sympathetic to Kirkpatrick Sale's vision of a "human scale" society structured around "human scale" social institutions. If there were some way imaginable that the United States might amend its federal constitution to align with the above precepts, or that the nation could peacefully be split into several more governable autonomous regions: I would welcome a discussion.
But I do not believe such outcomes are presently possible, if ever, and I think it is irresponsible to encourage defiance of federal authority; moreover, it is both irresponsible and dangerous to encourage local sheriffs to do so. I say that knowing full well that our federal government is currently in the hands of an authoritarian, that President Donald Trump may take us into a constitutional crisis any day now, and that our democracy is in peril as I write; but that makes this precisely the wrong time for Kirkpatrick Sale to push his agenda—because if ideas like nullification and secession are ever to be taken seriously, it must be at a time when our political fabric is strong and our nation is united.
No matter what Donald Trump says tonight, this is not such a time.
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* For an example of de jure nullification, see the recent announcement by the State of Idaho that insurers in the state do not need to abide by regulations of the Affordable Care Act, a law which, however despised by some, is still in effect—even in Idaho.
** https://en.wikipedia.org/wiki/Subsidiarity_(Catholicism) Some advocates of subsidiarity tend to gloss over the stipulation regarding "competent" authority, a caveat through which you could drive a truck or even a popemobile.
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