Can States Opt Out of Federal Law?

Can a state decide not to adopt the new healthcare law? Learn about the growing trend toward state “nullification.”

Adam Freedman
5-minute read

What is Nullification?

The term “nullification” refers to the ability of a state to resist or ignore a federal law that it considers to be unconstitutional. The idea has been getting a lot of attention lately as dozens of state legislatures are considering laws to block the implementation of the new federal healthcare law within their borders. As I’ll explain in a minute, such measures have dubious legal effect, but they can have enormous practical impact..

Can States Opt Out of the New Federal Health Care Law?

In an earlier episode, Is the Health Care Law Unconstitutional, I explained some of the arguments for and against the constitutionality of the new health care law. Well, a number of state legislatures have apparently decided that the law is not constitutional. According to press reports, 36 states are considering legislation to block implementation of the new law within their borders. Many--if not most-- supporters of these laws invoke what they consider to be an inherent right of states to “nullify” federal laws that they consider exceed the federal government’s constitutional power.

And that’s not the only recent example of nullification.   A similar wave of state laws swept the nation over the last few years in reaction to the REAL ID Act, a 2005 law signed by President Bush, requiring states to conform to certain federal standards for drivers’ licenses and identification cards, and requiring states to share certain data.   Some 25 states have passed legislation denouncing the legislation and--in the case of some states--flatly refusing to cooperate with the law.

Who Decides What Federal Laws States Can Block?

The Supreme Court itself declared that it had the power to strike down unconstitutional laws, in the 1803 case of Marbury vs. Madison.

The legal basis for nullification is the Tenth Amendment to the Constitution which provides that the powers not delegated to the federal government generally belong to the states or to the citizens.   But the Tenth Amendment does not answer one very important question: who gets to decide whether a particular power was or was not delegated to the federal government?

If at this point, you’re furiously raising your hand and saying “I know, I know, it’s the Supreme Court!” then you’re at least partially right. For 200 years, most Americans have looked to the Supreme Court as the ultimate authority on the constitutionality of federal laws. But nothing in the Constitution specifically grants the Supreme Court that power. Instead, the Supreme Court itself declared that it had the power to strike down unconstitutional laws, in the 1803 case of Marbury vs. Madison.

Supporters of nullification argue that even if the Supreme Court has the power to strike down unconstitutional laws, there’s no reason the Court should have exclusive power to do so. After all--the argument goes--isn’t it a little strange to give the federal government the exclusive power to determine the extent of its own power? Shouldn’t the states have the power to smackdown the federal government when it oversteps its bounds?

One quick point: in case you’re wondering, state nullification has nothing to do with “jury nullification” which is a completely different concept. Jury nullification is a term used to describe situations in which a jury refuses to apply the law in a particular case. 


About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).