Nullification Part Deux

During this year’s General Assembly, two state sovereignty bills popped up on the docket to establish a process in which the state could address federal overreach. Neither passed, but the clash between them—one creating a procedure to invoke articles of nullification, the other establishing a committee to assess federal overreach—inspired the Tennessee Senate State and Local Government Committee to support a summer study per the request of nullification bill Sponsor Janice Bowling.

The committee held the summer study last week, and senators heard from three expert witnesses; all lawyers and constitutional scholars. Joe Wolverton and Jeff Cobble—who spoke in favor of nullification—staunchly held to the argument that states have the right to reject any federal action that isn’t explicitly enumerated in the Constitution. Mark Pulliam—who spoke against the “fringe” theory of nullification—cited two centuries of precedent in a way that can be chalked up as: we dealt with this in 1832, we don't need to do it again.

In January, Senator Adam Lowe sponsored a bill that sought to find common ground between the two views of the issue by monitoring federal overreach. At last Thursday’s hearing, Lowe dug into the implications of Senator Bowling’s nullification bill. “I think this bill is an indictment on the will of the legislature more than the process,” he said. “It seems we have a process. I think that the beef is whether or not we've had the will. And most Tennesseans probably would argue, including many in this room, that we don't want to undo everything. Like I said, we have the authority to consent to healthy relationships with our federal counterparts and to the states around us.”

On Monday, we followed up with Lowe to unpack his perspective. Here’s what he had to say:

Can you explain a little bit about your particular bill, and what the difference is between the two bills that were brought forward during the last General Assembly?

The bill that I had was a variation on a bill Senator Bowling had carried previously. It was not in conflict with nullification because [my] bill just addressed procedure, not procedure to an end. The [other] highly discussed nullification bill sets forth…a process where you can pursue articles of nullification. The assumed outcome is to nullify. My bill kind of took a 10,000-foot view and said, “Maybe nullification isn't always necessary, but action is.” It would have a process where we would be actively reviewing federal laws and regulations to determine whether or not they conflict with state law.

That bill sought to essentially replicate what we do at the state level. We have a Government Operations Committee in the state of Tennessee, and any rule that is created by a bureaucrat in Tennessee comes before us for oversight. That is not a function at the federal level, and that's part of the reason we persistently have policies adopted at the departmental level that have the effect of law.

Think of the bump stock ban. There never was a law passed banning bump stocks. It came through executive order to a department—the ATF—that adopted a policy that rendered it essentially a crime without law. That's a good opportunity for us to recognize, “Whoa, that conflicts not only with constitutional law at the federal level, but with everything in Tennessee. How do we object to this?”

One way may be to start articles of nullification. Another way might be to enter into diplomacy with our federal officials that represent us at the state level. Another one, if it's monetary, would be to enter departmental negotiation. 

I didn't presume an outcome with that bill. It was just to make sure we had some entity at the state level actively analyzing the impact of federal policies. What we have right now, without that bill passing, is us as individuals can recognize it. I can create a lot of kerfuffle and bring a bill to the legislature. That's been the pattern. Or…we lean on our department bureaucrats to recognize when it conflicts, and whether or not they care enough to notify us.

During last week’s summer study, you mentioned that Tennessee doesn’t need to pass a law to establish state sovereignty. In fact, you cited a number of examples where Tennessee has already passed laws that outright reject federal mandates. Would you still consider bringing forward similar legislation during next General Assembly?

I don't tend to like things that masquerade as something else. I'm not saying that was the intent of the nullification bill, but when you got to talking to people who believed in it and wanted it, the crux of their feelings was, “I want a mechanism that can be invoked because I don't really trust you as a body to do it.” Could we do more? Obviously, I believe we could. But we actually have stepped forward at some very aggressive moments, and I would argue—in the past two years—more aggressively than maybe any moment in Tennessee history. 

Look at how many federal court challenges are coming at things we've passed, and that we're surviving. Our anti-lewd bill, that you can't be lewd to a kid, is now law of the land even though it was enjoined. We're about to go before the Supreme Court next year to argue the transgender surgery bill [for] minors. We've done some pretty aggressive flexing against the federal government.

My argument that we didn't necessarily need a bill was that our Tennessee Constitution, in that section in Article 11, pretty explicitly says those things. Any piece of legislation that I bring is not nearly carrying as much gravitas as that section of Tennessee Constitution. I could reinforce it, I could point to it, but the authority of the legislature is already there. 

I asked point blank, “Do we need this bill to have this authority?” All the experts said, “No, you can already do this.” So I asked clearly, “What is the purpose of this? What procedural element are we adding with that bill that we don't already have?” The answer to that is this laundry list of anybody who can trigger nullification. You asked about compromise; I've proposed that compromise.

Were you surprised by the Attorney General's opinion on the nullification bill, and was the request for an opinion orchestrated to combat the narrative around these two bills?

It's not uncommon. I've requested a number of AG opinions. This was not one of them. Oftentimes our requests get rejected because they have to be directly related to whether or not it would put us, as a state, in a legal position. 

I wasn't overly surprised at his response because it's not comprehensive. The response is directly to the question, “Does this create constitutional risk and litigation?” Skrmetti’s opinion was not incorrect, despite what the committee said. They can disagree with him, but it was technically accurate. Even they evidenced it when they rebutted him by saying the courts are doing these things and they're overstepping. He wasn't commenting on whether or not the federal courts overstepped their authority or that the Supreme Court oversteps their authority. He was just commenting that the current political, legal environment says they're going to assert their authority on us.

Well, he did call it constitutionally infirm.

That's because he based all of that on case precedent, which is probably where he and I might disagree. There are differences in interpretation that I have as an academic, that people who went to law school have a very different one. One of those is the gravitas of case law. We argue philosophically, pretty robustly in policy environments, against case law. Just because something has happened doesn't mean it happened right. 

Wickard v. Filburn took a farmer who was raising hay to feed his own cattle, and they labeled it interstate commerce. For one hundred years, the supremacy clause used around interstate commerce points to that particular judgment. Well, it's hard pressed to find anybody in an academic space that says that was a good judgment. Any reasonable person on the street would argue that's not interstate commerce. That's a law that we, with the Goods in Tennessee bill once it gets challenged, will likely have to go argue in front of the Supreme Court.

So, I have a champion in Skrmetti with regards to sovereignty. He probably has some more law school-based opinions on traditional roles, much like our anti-nullification expert had in the committee. I challenge some of those as an academic because I get the ability to think “what if” in my spaces.

Do you have anything else you’d like to tell our readers about the clash over these bills?

Listen, the battles are coming. Life has enough drama; you don't have to create it. That's my concern, especially within the conservative movement, that we'll be internally exhausted when they show up.