Return of the ‘Rightful Remedy’: Nullification Legislation in the American States*

Adam Olson (olso4075@umn.edu)

University of Minnesota

Timothy Callaghan (calla269@umn.edu)

University of Minnesota

Andrew Karch (ajkarch@umn.edu)

University of Minnesota

Abstract

The early twenty-first century has been a period of elevated tensions between the states

and the national government in the United States. One manifestation of this intergovernmental

conflict is the recent proliferation of state legislative proposals to “nullify” or invalidate national

policies within state jurisdictions. During the 2015 legislative session, over 250 nullification-

related bills were proposed in state legislatures across the country. The proposals appeared in

virtually every state in the Union and addressed a range of issues that spanned the entire

ideological spectrum. This paper assesses the state-level factors associated with the introduction

and enactment of bills representing three forms of resistance to national laws: true nullification;

non-acquiescence; and procedural proposals. Its empirical analysis suggests that nullification-

related legislative activity is more likely to occur in more populous states and in states with less

professional legislatures. Somewhat surprisingly, neither the introduction nor the enactment of

nullification-related legislation appears to be related to party politics at the state level, a result

which runs counter to the portrayal of the contemporary period as one of heightened “partisan

federalism.”

* Paper prepared for presentation at the 2016 Annual Conference on State Politics and Policy,

Dallas, TX. The authors would like to thank Adam Myers, Graeme Boushey and Shanna Rose

for their helpful feedback on an earlier version of the paper.

1

In December 2015, Texas Governor Greg Abbott called for a constitutional convention to

consider nine amendments to the U.S. Constitution. Two of them would have profoundly altered

American federalism by allowing two-thirds of the states to override a Supreme Court decision

or a federal law or regulation. While it might be tempting to characterize the governor’s call as

idiosyncratic or an example of partisan posturing in an era of heightened polarization, it reflects a

surprisingly widespread resurgence of interest in the doctrine of nullification. This legal theory,

which emerged in the eighteenth century and laid the foundation for the Civil War but has never

been upheld in the federal courts, proposes that the states have the ability to invalidate national

actions that they deem unconstitutional. Other recent developments resonate with the principle

of nullification. The landmark 2015 Supreme Court ruling in Obergefell v. Hodges—which held

that the Fourteenth Amendment guarantees the right to marry and that this right applies to same-

sex couples—spurred some state and local officials to question the legitimacy of the decision and

refuse to enforce it.1 Their actions came months after Senate Majority Leader Mitch McConnell

(R-KY) wrote a column in the Lexington Herald-Leader in which he encouraged “governors and

state leaders” to refuse to comply with regulations issued by the U.S. Environmental Protection

Agency (EPA).2

Historical and contemporary proponents of the doctrine of nullification characterize it as

a check against the potential tyranny of the central government, while opponents respond that it

is inherently destabilizing. The episodes described above resonate with contemporary

scholarship on American federalism, much of which describes heightened tensions between the

1 In Texas, for example, Governor Abbott and Attorney General Ken Paxton effectively encouraged local clerks to

refuse to issue marriage licenses to same-sex couples if it conflicted with their beliefs. See Rick Jervis, “Same-Sex

Marriage Ruling Faces Religious Rights Battle in Texas,” USA Today, 29 June 2015. The saga of Rowan County

(KY) Clerk Kim Davis, who defied a federal order that she issue marriage licenses to same-sex couples, generated

significant national and international publicity. 2 Mitch McConnell, “States Should Reject Obama Mandate for Clean-Power Regulations,” Lexington Herald-

Leader, 3 March 2015.

2

states and the national government. In recent years, state governments have filed many lawsuits

against national policies in areas like health care, education, and environmental protection. State

leaders also have rejected national funds with significant fanfare (Nicholson-Crotty 2012). Thus

the resurgence of nullification is consistent with the recent emergence of a “fend for yourself and

activist form of bottom-up federalism” (Gamkhar and Pickerill 2012).

According to the Tenth Amendment Center, which bills itself as “the nation’s leading

source of constitutional education and nullification activism,”3 state legislators introduced more

than 250 nullification-related proposals in 2015; nearly 40 of these proposals gained enactment.

These proposals appeared in virtually every state in the country. However, states varied in both

the number and the content of the bills that appeared on their legislative agendas. After a brief

overview of the contemporary intergovernmental context, this paper takes a closer look at each

of the legislative proposals. Building on previous research (Dinan 2012; Read and Allen 2012),

it distinguishes among three types of proposals. The first category includes bills that advocate

nullification in the traditional sense, explicitly questioning the constitutionality of a national law

or declaring it “null and void” within the state. The second category includes proposals that vow

“non-acquiescence” to a national statute, asserting that the state will not cooperate but stopping

short of declaring the law unconstitutional (Dinan 2012). Our final category, which has not been

identified in previous research, consists of bills that are partly inconsistent with existing national

law but nevertheless work within the broader framework of the relevant national law rather than

rejecting it wholesale.

The remaining sections of the paper attempt to isolate the patterns that help account for

the geographic variation described in the previous paragraph, both collectively and within each

individual category. The recent vintage of the proposals and the fact that they were introduced

3 http://www.tenthamendmentcenter.com (accessed March 15, 2016).

3

during a single legislative session mean that our conclusions are necessarily preliminary, but our

initial investigation reveals some intriguing and somewhat surprising patterns. Although legal

scholars describe the current era as a period of heightened “partisan federalism” (Bulman-Pozen

2014), partisan control seems to have only a modest effect on the introduction and enactment of

nullification-related legislation. Instead, the bills are more likely to be introduced and adopted in

more populous states and in states with less professional legislatures. These preliminary findings

suggest several fruitful avenues for research on policy diffusion and intergovernmental relations.

American Federalism in the Early Twenty-First Century

Federalism, in terms of both the shifting relationship between the national government

and the states and institutional changes within the states themselves, has played a central role in

the politics and evolution of the American state (Robertson 2012) and disagreements between the

states and the national government date back to the earliest years of the Republic. According to

some scholars, these disputes are components of an intergovernmental system that is based, in

part, on the concept of “uncooperative federalism” (Bulman-Pozen and Gerken 2009).4 In recent

years, however, the volume and intensity of these intergovernmental conflicts seems to have

increased. State governments have challenged and resisted national laws across a striking range

of issue areas. This section briefly describes some of these developments to offer a sense of the

political environment in which the resurgence of interest in nullification has occurred.5

4 Bulman-Pozen and Gerken (2009, 1256) use the term to describe how “states use regulatory power conferred by

the government to resist federal policy.” 5 See Gamkhar and Pickerill (2012) and Rose and Bowling (2015) for comprehensive appraisals of contemporary

American federalism.

4

One useful way to view heightened intergovernmental tensions in the United States is

through the lens of specific programmatic domains, such as education policy. Passage of the No

Child Left Behind Act (NCLB) expanded the national government’s role in K-12 education,

embracing a standards-based approach and a strict testing regime. As a result, it “created tension

in the intergovernmental policy system” (Wong 2015, 407). State opposition to the national law

was so strong that three-quarters of the states introduced retaliatory legislation and five states

passed laws that explicitly rejected parts of NCLB; meanwhile, Connecticut chose to sue the

national government for failing to fund the law adequately (Shelly 2012, 119). The Common

Core State Standards Initiative (CCSSI), which grew out of NCLB and generated the

introduction of nullification-related legislation, fostered comparable tensions (Jochim and Lavery

2015). In December 2015 President Obama signed the Every Student Succeeds Act, which

prohibited the national government from incentivizing the states to adopt the CCSSI, and the law

was hailed as an overdue recalibration of the national government’s role in education policy.6

State-level resistance to national law has also occurred in the context of immigration

policy. During the George W. Bush administration, several states “prevented their law

enforcement officers from carrying out federal immigration laws [or] staged confrontations with

federal agencies around the rights of undocumented workers” (Bulman-Pozen 2014, 1106-7).

Intergovernmental conflict continued during the presidency of Barack Obama. While officials in

states like Arizona blasted the Obama Administration for its enforcement of existing immigration

law, enacting restrictive laws to address what they perceived as a policy vacuum, other states

resisted the administration’s Secure Communities program. When the president announced a

series of immigration-related executive actions in November 2014, officials in twenty-six states

6 See, for example, Gerard Robinson, “A Remarkable Feat in Education,” U.S. News &World Report, 4 January

2016.

5

joined a lawsuit filed by then-Texas Attorney General Greg Abbott seeking to halt their

implementation.

Recent developments in education and immigration policy only hint at the heightened

tensions that characterize contemporary intergovernmental relations in the United States. In just

the past fifteen years, state officials have also fought a “spirited battle” against the REAL ID Act

of 2005 (Bulman-Pozen and Gerken 2009, 1282) and filed a lawsuit alleging that the Patient

Protection and Affordable Care Act (PPACA) unconstitutionally infringed on state sovereignty.

In addition to filing lawsuits and dragging their heels during the implementation process, state

officials have relied on other tools to express their displeasure with national lawmaking. Many

national laws provide intergovernmental grants to fund their priorities, and in recent years state

officials have reacted to several such initiatives—funding abstinence-only instruction,

unemployment benefits for the long-term unemployed, and high-speed rail, among others—by

refusing to accept or even apply for grants and, in some cases, by returning grants that have

already been awarded to their states (Nicholson-Crotty 2012).

In sum, the American political system provides state governments with several potential

avenues through which they can challenge national laws. Such challenges are commonplace in

an era in which the states seem increasingly inclined to respond to the national government “with

acts of resistance or defiance” (Gamkhar and Pickerill 2012, 379). Even federalism scholars like

Sean Nicholson-Crotty (2012, 461), who argues that there is “little novelty” in recent rejections

of intergovernmental grants, acknowledge that “there may be something new in the frequency of

such actions.” In an era of heightened intergovernmental tensions, perhaps it is unsurprising that

the most recent state legislative session witnessed considerable nullification-related activity even

though, unlike other forms of state resistance, nullification is not sanctioned by the Constitution

6

and has never been upheld by the federal courts. At the same time, however, the motivation for

nullification-related legislation is the same one that inspires lawsuits, the rejection of federal

funds, and implementation tactics that undercut national laws. Nullification is a particularly

strong form of “civil disobedience” in which “states may simply refuse to comply with the

national program or otherwise obstruct it” (Bulman-Pozen and Gerken 2009, 1272).

The Reach and Types of Nullification-Related Legislation

This section introduces an original dataset of nullification legislation that was proposed

during the 2015 legislative session. The dataset builds on the efforts of the Tenth Amendment

Center (TAC), a nonpartisan advocacy organization that disseminates information about the act

of nullification, tracks nullification legislation at the state level, and provides model legislation

for interested officials to introduce. Sometimes this model legislation is produced by the TAC,

and sometimes the center distributes model legislation that is authored by other organizations.

Like many historical and contemporary proponents of nullification, the TAC portrays it as a way

for states to check the power of the central government.

The TAC divides current state nullification legislation into twelve substantive categories

based on the policy issues they address. In building our dataset, we began with the legislation

that the organization identified as falling into each of the categories.7 We used state legislative

websites to gather additional information about these proposals, including their sponsors and

legislative progress, while also attempting to locate additional nullification bills. This strategy

resulted in the identification of 258 pieces of legislation. Table One displays the number of bills

falling into each issue category and their respective legislative progress during the 2015 session.

7 The Appendix provides additional information about the twelve categories.

7

It reveals two important patterns. First, the data in Table One suggest that the introduction of

nullification-related legislation has had a meaningful impact on state political agendas. It is not

mere posturing or “position-taking.” Thirty-nine of the proposals were signed into law, and this

number may increase in future sessions if the issues follow the “softening up” process often

associated with policy change (Kingdon 1995). In fact, state legislators took action on 41

percent of the proposals, investing time and energy in them by at least holding hearings. Second,

it bears noting that the proposals address issues that span the entire political spectrum. Proposals

to undercut the Patient Protection and Affordable Care Act or Common Core, which are both

associated with the Obama Administration,8 are not surprising in an era of partisan polarization.

However, initiatives related to police militarization and license plate tracking are more difficult

to classify ideologically, and proposals on marijuana legalization are associated with political

causes that are typically identified as liberal. Of the 258 bills in the dataset, in fact, 91 (35.3

percent) were sponsored by Democratic legislators.

[Insert Table One about here]

The geographic reach of the legislation that was introduced in 2015 is just as impressive

as its substantive and ideological range. Figure One reveals that the proposals were not confined

to a single region of the country or to a certain type of state. Eleven nullification proposals were

introduced in four states (Mississippi, Missouri, Tennessee, and Texas). While all of these states

tilt toward the conservative end of the political spectrum, there was significant legislative activity

in states like Minnesota and Washington and conservative Idaho was the only state in which no

relevant legislation was introduced in 2015. The proliferation of nullification-related legislation

8 Common Core is viewed as a national policy partly because the Obama administration’s Race to the Top (RTTT)

initiative “all but required states to adopt the standards to be eligible for a share of the $3.4 billion dollars available

to support education programs” (Jochim and Lavery 2015, 382).

8

appears to be a national phenomenon, possibly because it takes only a single state legislator to

introduce a bill.

[Insert Figure One about here]

In addition to illustrating the national reach of nullification-related legislation, the map in

Figure One also highlights striking geographic variation. The number of bills introduced ranges

from a minimum of zero to a maximum of eleven, and a cursory glance at the map—with its

striking absence of clear regional patterns—suggests that this variation defies simple

explanation. A comparison of three pairs of neighboring states that are often portrayed as being

demographically similar (Minnesota and Wisconsin, Mississippi and Alabama, and Montana and

Idaho) is equally striking. Figure 2 displays a similar map depicting the number of nullification

bills adopted in each state in 2015. It reveals a less dramatic, but still noteworthy, level of

geographic variation. Three pieces of legislation were enacted in Minnesota, North Dakota, and

Tennessee, and two nullification-related bills were signed into law in Arkansas, Illinois, Indiana,

and Montana. On first glance, the diversity of these active states seems puzzling. What explains

this geographic variation?

[Insert Figure Two about here]

Before turning to this question, it is essential to say more about the proposals themselves.

For our purposes, the federalism-related implications of the proposed legislation are even more

important than its substantive content. The next stage of our analysis is therefore to read each

bill carefully to assess its impact on the national law in question. We grouped the proposals into

three distinct categories, the first of which consists of bills that declare a national law “null and

void” within the state or that explicitly question its constitutionality. The bills in this category

represent the most aggressive form of state government resistance and can be viewed as “true” or

9

“pure” nullification. Consider, for example, the specific language used in classic documents on

the doctrine of nullification. The Virginia Resolution, drafted in 1798 in response to the Alien

and Sedition Acts, accused national lawmakers of exercising “a power nowhere delegated to the

federal government [and] subvert[ing] the general principles of free government, as well as the

particular organization and positive provisions of the Federal Constitution.” In other words, it

flatly declared the relevant national laws unconstitutional. The South Carolina Exposition and

Protest of December 1828 invoked Congress’s enumerated powers and the Tenth Amendment to

offer an analogous claim about federal tariffs, calling them “a violation of the Constitution as

unwarrantable as the undisguised assumption of substantive, independent powers not granted or

expressly withheld.” A proposal does not qualify as true nullification unless it uses the language

of invalidation or unconstitutionality.

Other scholars have concluded that few of the bills that the TAC classifies as “nullifying”

actually seek to invalidate national laws (Dinan 2012; Read and Allen 2012). Our close reading

of the bills introduced in 2015 confirms this claim. In South Carolina, Senate Bill 117 included

an article entitled, “Nullification of unconstitutional federal limits on the right to hold and bear

arms.”9 The article questioned whether the interstate commerce clause of the U.S. Constitution

applied to personal firearms. A state senator in Minnesota introduced the “Second Amendment

Preservation Act,” which declared that “all federal acts, laws, orders, rules, or regulations

regarding personal firearms, firearm accessories, and ammunition are a violation of the Second

Amendment” and “shall be considered null and void and of no effect in the state.”10

These types

of proclamations were exceedingly rare, however. Of the 258 proposals in our dataset, only 10

(3.9 percent) fall into the pure nullification category.

9 Senate Bill 117, “South Carolina Firearms Liberty Act,” 121st South Carolina General Assembly, introduced 13

January 2015. 10

S. F. No. 28, “Second Amendment Preservation Act,” 89th Minnesota Legislature, introduced 8 January 2015.

10

Our second category consists of legislation that does not question whether a particular

national law is constitutional but nevertheless pledges that the state will not abide by it. In the

words of John Dinan (2012), these proposals represent “non-acquiescence.” A Texas resolution

on the individual mandate imposed by Patient Protection and Affordable Care Act, for example,

proclaims that a “state agency, public official, employee, or political subdivision of this state

may not act to impose, collect, enforce, or effectuate a penalty or sanction.”11

The preamble of

the “North Carolina Medical Cannabis Act” similarly declares that, “States are not required to

enforce federal law or prosecute people for engaging in activities prohibited by federal law.”12

These proposals pledge not to cooperate with the relevant federal law but do not declare it null

and void. Many “right to try” bills that state officials introduced in 2015 are additional examples

of “non-acquiescence.” The proposals allow terminally ill patients to use pharmaceuticals that

the Federal Drug Administration (FDA) has not yet approved for public use. Even though they

circumvent the standard process for drug approval, they do not nullify the authority of the FDA.

Most “right to try” bills implicitly recognize the authority of the national government to regulate

prescription drugs, in fact, because they are limited to products that have completed phase one of

a clinical trial. Nearly two-thirds of the legislative proposals introduced in 2015 (66.3 percent)

fall into the “non-acquiescence” category.

Our third and final category includes proposals that are inconsistent with national law or

a particular legal framework. Of the three types of bills considered in our analysis, those in this

category represent the mildest form of state-level resistance to the national government. Many

of them are procedural in nature. For example, a bill in Vermont addresses the topic of police

militarization: “Notwithstanding the appointment of the Adjutant and Inspector General as State

11

Senate Joint Resolution 16, Texas Legislature, 84th Session, introduced 2 February 2015. 12

House Bill 78, “North Carolina Medical Cannabis Act,” General Assembly of North Carolina, Session 2015, filed

11 February 2015.

11

coordinator for the transfer of military equipment pursuant to the federal program…the Attorney

General shall directly oversee the transfer of military equipment to law enforcement agencies.”13

The proposal does not question the constitutionality of the national program. Rather, it alters the

procedure governing the program by placing it under the jurisdiction of a different state official.

Similar legislation was introduced in Massachusetts, requiring that the Secretary of Public Safety

and Security must approve applications for military-grade weaponry by state police, regional law

enforcement councils, and multi-jurisdiction agencies.14

Many bills related to drones, both

affecting the intergovernmental grants through which state agencies acquired drones and the

conditions under which drones could be used, also fall into the procedural category. These

measures often require a search warrant or “exigent circumstances” in order for law enforcement

agencies to use drones. All of the bills in this category, regardless of their substantive content,

propose a state policy that is inconsistent, at least in part, with national policy. However, they

work within its broader legal framework and do not reject it or declare it invalid. Of the 258

proposals in our dataset, 77 (29.8 percent) belong to the procedural category.

Bills addressing the same substantive policy area can have starkly different implications

for American federalism. Proposals that flatly declare unconstitutional any Second-Amendment-

related activity, such as those cited earlier, are qualitatively different from those stating that, “An

employee of the state or any political subdivision may not expend public funds or allocate public

resources for the enforcement of a federal ban on semiautomatic weapons or magazines.”15

The

provisions of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 spurred

nullification-related proposals on unlawful detention that fall into all three of our categories. An

13

H. 8, Vermont General Assembly, 2015-16 Session, introduced 13 January 2015. 14

S. 1234, 189th General Court of the Commonwealth of Massachusetts, introduced 15 April 2015. 15

House Bill No. 203, “Montana Federal Semiautomatic Firearm and Large Magazine Ban Enforcement Prohibition

Act,” 64th

Montana Legislature, introduced 13 January 2015.

12

example of pure nullification in Nevada claims that the sections “violate portions of federal law,

the United States Constitution, and the Nevada Constitution and, as such, are invalid and illegal

in this State.”16

In contrast, a bill on the same topic in Minnesota exemplifies non-acquiescence

because it does not invalidate national government activity but does incorporate a “prohibition

on participation in activities which aid in federal indefinite detention.”17

Finally, a related bill in

Virginia is procedural in nature, requiring the U.S. Secretary of Defense to provide notification

to the state’s Secretary of Public Safety or “seek authorization from the chief law-enforcement

officer of the locality in which the citizen is detained prior to the removal of the citizen from the

locality.”18

These differences reflect distinctive levels of state resistance to national government

initiatives, though all of them illustrate the heightened tensions that characterize contemporary

intergovernmental relations in the United States. Drawing on recent research on federalism and

state politics, the next section offers a preliminary answer to the question of why nullification-

related activity has been more prominent in some states than in others.

Analysis and Results

Motivated by the geographic variation described in the previous section, we conducted a

multivariate analysis that seeks to identify the state-level factors that account for the introduction

and passage of nullification-related legislation. First, we used information about the legislative

progress of the 258 bills in our dataset to generate two count-based dependent variables. The first

dependent variable indicates the total number of nullification bills introduced in a state across all

twelve issue areas; the second dependent variable provides the analogous figure for the number

16

Senate Bill No. 352, “Nevada Liberty Preservation Act,” 78th Nevada Legislature, introduced 16 March 2015. 17

S. F. No. 27, “Liberty Preservation Act,” 89th Minnesota Legislature, introduced 8 January 2015. 18

House Bill No. 2144, Virginia General Assembly, 2015 Regular Session, introduced 14 January 2015.

13

of bills signed into law in each state.19

While information about bill introduction and adoption

across all nullification issues is useful, it is also important to account for the possibility that the

impact of specific factors depends on the type of state government resistance contained in the

legislation under examination. As a result, we developed three additional dependent variables

measuring the number of true nullification bills, the number of non-acquiescence bills, and the

number of procedural proposals introduced in each state.20

All five of our dependent variables

are count-based, so we used Poisson regression to assess the impact of several state-level factors

with the potential to affect nullification activity.21

Before presenting our results, we will describe

these potential influences in more detail.

Independent Variables

Our first two independent variables account for state partisan alignments. Legal scholar

Jessica Bulman-Pozen (2014, 1078) describes the current era as one of “partisan federalism” in

which “competition between today’s ideologically coherent, polarized parties leads state actors

to make demands for autonomy, to enact laws rejected by the federal government, and to fight

federal programs from within.” State government responses to the Affordable Care Act, which

have been shaped profoundly by partisanship (Jacobs and Callaghan 2013; Jones, Bradley, and

Oberlander 2014; Oberlander 2011), represent an especially prominent example of this dynamic.

We account for partisanship with a dummy variable indicating whether the governor of a state is

19

Models relying on additional dependent variables designed to capture other steps of the legislative process (i.e. a

bill getting voted out of committee, passing one chamber, or passing both chambers) were evaluated but ultimately

excluded because they provided no new information and often failed to reach statistical significance. 20

We also developed dependent variables that accounted for the number of adoptions for each type of state-level

resistance. Models examining this outcome produced no significant results, probably because of the relatively small

number of adopted bills in each category. 21

Fit statistics suggest that a Poisson model better fit the data than a negative binomial regression. We also assessed

the possibility that the zeroes on our count models were inflated. Zero-inflated models proved inappropriate given

our limited sample size, however.

14

a Republican and with a three-point measure capturing full, partial or no Republican control of

the state legislature. Previous research suggests that individual measures for each branch are

necessary given the different strategic interests of executive officials and legislators (Callaghan

and Jacobs 2014; Ferguson 2003; Miller and Blanding 2012; Rigby and Haselswerdt 2013). In

an era of partisan polarization with a Democratic president, Republican officials might be more

predisposed to support resistance to national laws.

The third independent variable included in the analysis is a proxy for political ideology.

It is the percentage of the state vote that President Obama received in the 2012 presidential

election. We expect a negative relationship between the president’s vote share and nullification-

related activity, as states that are less supportive of the president may be less favorably disposed

to national government initiatives. There are, of course, other ways to measure political ideology

at the state level (Berry et al. 1998), but presidential vote share seems especially appropriate in

this context, and it has been used to examine state resistance to national initiatives like NCLB

(Shelly 2012). Moreover, it is important to note that ideology is distinct from partisanship. In

2012, President Obama won a majority of the vote in states like Maryland and Wisconsin that

now have divided government and unified Republican control, respectively.

The models also include a measure of state affluence. Affluence is a proxy for resource

availability. Research on policy diffusion among the American states has consistently found that

fiscal capacity facilitates the early adoption of innovations (Boehmke and Skinner 2012; Rogers

1995; Walker 1969). Just as state governments may be more likely to innovate if they possess

the financial wherewithal to invest in policy design and implementation, wealthier states may be

more supportive of nullification-related efforts because they do not feel beholden to the national

government and the funds it provides. In contrast, less affluent states may be more dependent on

15

intergovernmental grants and consequently less supportive of those efforts. Our models include

a measure of real per capita personal income that was obtained from the Bureau of Economic

Analysis.

Two additional demographic traits have been associated with resource availability and

therefore are included in the models. Many studies have found that more populous states and

states with higher urbanization levels tend to be more innovative (Boehmke and Skinner 2012;

Boushey 2010; Walker 1969). The models include a logged measure of the state population and

the percentage of the population residing in urban areas, both of which come from the United

States Census. Previous studies of state government resistance to national government policy

have assessed the effects of population and urbanization, and two studies identify a significant

relationship between population and resistance (Nicholson-Crotty 2012; Shelly 2012). Officials

in states with larger populations may be more inclined to view their jurisdictions as autonomous

entities that can operate independently of the national government and, as a result, they might be

more supportive of nullification-related efforts.

Numerous studies have isolated the importance of state legislative professionalism, which

is associated with higher salaries, longer sessions, and greater staff resources (Squire 2007). The

impact of this institutional feature of state government is uncertain in the context of nullification

legislation. On the one hand, legislators in highly professionalized chambers may be better able

to identify and evaluate new policy options (Boushey 2010; Shipan and Volden 2006), providing

them with more confidence in their ability to operate independently of the national government.

On the other hand, however, it is essential to recognize that the Tenth Amendment Center (TAC)

makes model legislation publicly available for seven of the twelve issue domains included in our

analysis. The availability of model legislation is important because time- and resource-pressed

16

lawmakers in less professionalized chambers might be more likely to introduce bills that interest

groups and others have drafted. Several recent studies have assessed this potential relationship,

finding mixed results (Hansen et al. 2015; Hinkle 2015; Kroger 2015). A recent study of state

resistance to federal mandates identifies a significant negative relationship between legislative

professionalism and resistance to the No Child Left Behind Act but finds that this variable did

not have a significant effect in the context of three other policies (Balla and Deering 2015).

The final independent variable in the models reflects the distinctive history of the United

States in terms of nullification and intergovernmental relations more generally. As has already

been explained, the doctrine of nullification is often associated with the Civil War because it was

employed to help justify secession from the Union. The models therefore include a dichotomous

variable indicating whether a state belonged to the Confederacy in the 1860s. These states may

be especially predisposed to nullify national government policies due to the legacy of the Civil

War and the distinctive features of southern politics (Key 1984; Mickey 2015).

Results

Table Two displays the results for models in which the dependent variables include all

three categories of nullification-related legislation. In model one, the outcome of interest is the

total number of bills introduced in a state in 2015. It identifies three noteworthy patterns. First,

it highlights a significant positive relationship between state population and bill introduction. All

else being equal, a one-standard-deviation increase in logged population is associated with 2.33

additional bill introductions.22

This result may suggest that legislators in more populous states

are more inclined to believe that they can operate independently of the national government and

22

Substantive effects were calculated based on discrete changes in significant independent variables while holding

all other variables at their means.

17

are consequently more willing to challenge national policies. Second, the results of model one

identify a significant negative relationship between legislative professionalism and the number of

nullification bills introduced, as a one-standard-deviation increase in legislative professionalism

is associated with 1.58 fewer bills. The third noteworthy pattern is that factors like partisanship,

ideology, income, urbanization, and membership in the Confederacy do not attain conventional

levels of statistical significance.

[Insert Table Two about here]

The second model in Table Two assesses the impact of the same set of predictors on the

passage of nullification-related bills. Its results are nearly identical to those of model one. There

is a significant positive relationship between state population and the number of bills signed into

law. All else equal, moving from a less populous to a more populous state results in the adoption

of 0.46 additional bills.23

Meanwhile, legislative professionalism has a significant negative

effect on the enactment of nullification legislation. Moving from a less professional to a more

professional state legislature decreases the number of bills signed into law by 0.62. The results

in model two also identify a marginally significant positive relationship between state per capita

personal income and the enactment of nullification-related proposals, as a one-standard-deviation

increase is associated with the passage of 0.22 additional bills. The general consistency across

the two models is encouraging. However, it is critical to acknowledge that the F-test for model

two is insignificant, likely due to the fairly small number of enactments that occurred in 2015.

General patterns of bill introduction and enactment are revealing, but it is plausible that

the impact of certain predictors depends on the federalism-related implications of the measures

under review. Table Three therefore displays the results of three models in which the proposals

23

As in the preceding paragraph, all estimates of substantive effects are based on a one-standard-deviation increase

in the quantity of interest while holding other variables at their means.

18

are disaggregated and the outcome of interest is the number of introduced bills that fall into each

of our three categories. Model three presents the results of an analysis that focuses on examples

of true nullification, where proposals question the constitutionality of a national law or declare it

null and void within the state. The results of model three overlap somewhat with those presented

in Table Two. The logged population variable remains a positive and significant predictor of

nullification-related legislative activity. All else equal, moving from a less populous to a more

populous state leads to 0.08 additional bill introductions. Legislative professionalism continues

to have a negative effect on bill introduction, but in model three this relationship does not attain

conventional levels of statistical significance. Surprisingly, model three identifies a significant

negative relationship between state per capita income and bill introduction. Moving from a less

affluent to a more affluent state is associated with the introduction of 0.11 fewer proposals. The

results of model three seem to suggest that there is some merit to categorizing nullification bills

on the basis of their federalism-related implications.

[Insert Table Three about here]

Model four focuses on bills that pledge non-acquiescence to a national law but stop short

of questioning its constitutionality. The F-statistic for the model is insignificant, so it is essential

to be circumspect about drawing any definitive conclusions. There are some suggestive patterns,

however, that merit a brief discussion. State population remains a positive, significant predictor

of nullification-related activity, such that a one-standard-deviation increase in the population

variable leads to the introduction of 1.13 additional bills. The relationship between legislative

professionalism and bill introduction is in the expected negative direction, but it does not achieve

conventional levels of statistical significance. Similarly, as expected, per capita personal income

19

is associated with the introduction of more nullification-related bills, but this relationship is not

statistically distinguishable from a null effect.

In model five, the outcome of interest is the number of introduced bills that are partially

inconsistent with national law but nevertheless work within the broader framework of national

action rather than rejecting it. The results of this model overlap considerably with those of our

previous analyses. There is a significant positive relationship between state population and the

introduction of nullification-related legislation; moving from a less populous to a more populous

state results in the introduction of 0.91 additional bills. Legislative professionalism has a

significant negative effect on the introduction of bills that are inconsistent with national law.

Moving from a less professional to a more professional legislature is associated with the

introduction of 0.65 fewer proposals. Model five also identifies a significant positive

relationship between state per capita income and bill introduction, so that a one-standard-

deviation increase in our income variable leads to 0.47 additional bills. The marginally

significant negative relationship between the presence of a Republican governor and the

introduction of nullification-related legislation is the final noteworthy result in model five.

Across all five models, this is the only proxy for state partisanship that is identified as influential,

and its impact is in the opposite direction of what we predicted.

In sum, the results in Tables Two and Three allow us to draw some tentative conclusions

about the factors that influence the recent introduction and adoption of nullification-related bills

in the states. The most consistent pattern is the positive relationship between state population

and nullification activity, a finding that aligns with other recent research on state resistance to

national government policies (Nicholson-Crotty 2012; Shelly 2012). The negative relationship

between state legislative professionalism and our outcomes of interest is slightly less robust but

20

reasonably consistent and intriguing. Affluence had a significant positive effect on the adoption

of nullification-related legislation and was associated with the introduction of bills in two of our

categories, but it did not have a consistent effect on our outcomes of interest. Finally, perhaps

our most surprising finding is that state partisanship is largely unrelated to the introduction and

adoption of proposals that attempt to invalidate national policy. While the contemporary period

may very well be one of “partisan federalism” (Bulman-Pozen 2014), the resurgence of interest

in nullification-related legislation appears to be associated with other factors. It should not be

attributed solely to partisan polarization.

Conclusion

The Kentucky Resolution, drafted by Thomas Jefferson in 1798 in response to the Alien

and Sedition Acts, famously referred to nullification as the states’ “rightful remedy” whenever

the national government took action that violated the principles of the U.S. Constitution. Setting

aside the legal merits and checkered history of Jefferson’s claim, the recent proliferation of state

legislation that resonates with this principle is truly remarkable. Intergovernmental conflict is

part and parcel of the American political system because the Constitution “left the dividing line

between national and state power ambiguous, inviting endless political conflict over the rules of

federalism in the United States” (Robertson 2012, 19). However, the introduction of more than

250 nullification-related bills in a single legislative session, and the resulting enactment of nearly

40 of them, suggests that contemporary American federalism is characterized by unusually high

tensions. These initiatives appeared in nearly every state and spanned the political spectrum in

terms of their policy goals.

21

In addition to describing the impressive geographic and ideological reach of nullification

legislation in 2015, the preceding analysis offered a preliminary investigation of the factors that

account for state-level variation in the amount and content of nullification-related activity. The

results of this investigation highlight several potential avenues for future research. Although our

cross-sectional approach helped illuminate the relative impact of factors like state population and

legislative professionalism, the temporal dynamics of state-level nullification activity, both past

and future, warrant additional examination. Some of the policy issues profiled here predate the

2015 sessions, and many of them are likely to remain on the political agenda for the foreseeable

future. Incorporating information from more legislative sessions will both enhance the statistical

power of our analyses and permit an examination of the process through which these initiatives

have diffused among the states.

The consistent negative relationship between legislative professionalism and nullification

activity in 2015, for example, is particularly intriguing. Professional associations and interest

groups often circulate model legislation to interested state officials; many recent diffusion studies

have assessed whether their efforts are more impactful in less “professional” legislatures (Hansen

et al. 2015; Hinkle 2015; Kroeger 2015). The public availability of model legislation for seven

of the twelve issues in the preceding analysis makes it possible to assess this hypothesis, either

through a closer examination of the content of the bills that were introduced and enacted or by

comparing the general diffusion trajectories of different types of initiatives.

In addition, the preceding analysis suggests some potentially fruitful lines of inquiry for

the study of American federalism. While the positive association between state population and

nullification-related activities matches the findings of other recent studies of intergovernmental

tensions (Nicholson-Crotty 2012; Shelly 2012), future research should examine the potential link

22

between nullification and other state government acts of defiance. Efforts to invalidate national

laws may be one of many tactics employed simultaneously by discontented subnational officials,

or they might occur after other expressions of disagreement have been pursued unsuccessfully.

By granting nullification-related initiatives a more prominent place in federalism research, and

more closely investigating the relative timing of these efforts, scholars might develop a better

understanding of the contemporary relationship between the states and the national government.

23

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26

Table One: State Nullification Legislation by Issue Area, 2015

Issue Area Number

Introduced

Number

Received

Hearing

Number

Passed

Committee

Number

Passed One

Chamber

Number

Passed

Two

Chambers

Number

Signed

Affordable

Care Act 12 3 2 1 1 1

Agenda 21 6 1 0 0 0 0

Common Core 20 7 6 5 3 0

Drones 30 12 10 9 5 4

Hemp Farming 21 12 9 8 6 4

Indefinite

Detention 10 3 3 1 0 0

License Plate

Tracking 10 7 6 5 4 1

Marijuana 41 10 7 4 2 1

NSA

Surveillance 22 7 6 3 3 2

Police

Militarization 15 8 7 7 5 3

“Right to Try” 51 32 31 27 23 22

Second

Amendment 20 5 5 3 2 1

27

Figure One

28

Figure Two

29

Table Two: Introduction and Adoption of Nullification-Related Legislation

Model One: Model Two:

VARIABLE Total Bills Introduced Total Bills Signed

Republican Governor -0.23 0.07

(0.143) (0.385)

Republican Legislature 0.10 0.30

(0.253) (0.699)

Obama Vote 2012 0.01 -0.02

(0.011) (0.027)

Income 0.00001 0.00005^

(0.00001) (0.00003)

Population 1.07** 1.58*

(0.271) (0.786)

Urbanization -0.01 -0.005

(0.006) (0.018)

Legislative Professionalism -2.62** -7.65*

(0.888) (3.286)

Confederacy 0.02 -0.48

(0.198) (0.533)

Constant -5.40** -10.70*

(1.734) (4.897)

Observations 50 50

Adj. R-squared 0.106 0.108

Log Likelihood -115.057 -51.29

Standard errors in parentheses

** p<0.01, * p<0.05, ^ p<0.10

Note: Models analyzed using Poisson regression. F-statistic insignificant for Model 2.

30

Table Three: Introduction of Nullification-Related Legislation by Type

Model Three: Model Four: Model Five:

VARIABLE True Nullification Non-acquiescence Inconsistent

Republican Governor -1.83 -0.08 -0.45^

(1.12) (0.179) (0.255)

Republican Legislature 0.80 0.09 0.20

(1.529) (0.316) (0.462)

Obama Vote 2012 0.08 0.01 0.028

(0.081) (0.014) (0.022)

Income -0.0003* 0.000001 0.00005*

(0.0001) (0.00001) (0.00002)

Population 3.738* 0.76* 1.60**

(1.736) (0.328) (0.528)

Urbanization -0.01 -0.01 -0.02

(0.040) (0.007) (0.013)

Legislative Professionalism -8.15 -1.726 -4.13**

(6.656) (1.099) (1.577)

Confederacy -0.23 0.13 -0.26

(0.933) (0.238) (0.398)

Constant -14.639 -3.529^ -11.90**

(10.264) (2.102) (3.376)

Observations 50 50 50

Adj. R-squared 0.299 0.057 0.156

Log Likelihood -19.27 -100.69 -68.456

Standard errors in parentheses

** p<0.01, * p<0.05, ^ p<0.10

Note: Model analyzed using Poisson regression. F-statistic insignificant for Model 4.

31

Appendix: Issue Areas Addressed by Nullification-Related Legislation

Affordable Care Act (ACA): Bills addressing the national health care reform law and/or its

implementation.

Agenda 21: Bills addressing a nonbinding set of protocols outlined by the United Nations that

involve increased environmental and economic regulation.

Common Core: Bills addressing the Common Core State Standards Initiative, a reform program

associated with the standards movement in education.

Drones: Bills addressing the acquisition and/or utilization of drones through intergovernmental

grant programs.

Hemp Farming: Bills addressing a U.S. Drug Enforcement Agency regulation that prevents the

practice of growing industrial hemp.

Indefinite Detention: Bills addressing national laws that seem to allow the national government

to hold individuals for an indeterminate length of time.

License Plate Tracking: Bills addressing technology that allows state agencies and municipalities

to photograph license plate numbers.

Marijuana: Bills legalizing medicinal marijuana, embracing decriminalization efforts, or calling

for full legalization of the drug.

NSA Surveillance: Privacy-related bills addressing cooperation between state and local agencies

and the National Security Agency (NSA).

Police Militarization: Bills addressing the transfer of military-grade weapons and equipment

from the national government to local police forces.

Right to Try: Bills allowing terminally ill patients to use pharmaceuticals that the Federal Drug

Administration (FDA) has not yet approved for public use.

Second Amendment: Bills addressing federal gun regulations.