This week, Tennessee became the 25th state to join a lawsuit against the president’s executive amnesty order. The lawsuit may work, but there’s another, more direct, and considerably more interesting redress against executive overreach [first p]roposed in 1798 by Thomas Jefferson and James Madison.
Jefferson and Madison’s idea was for states to declare the Alien and Sedition Acts null and void. Instead of joining a lawsuit against the executive amnesty, those 25 states could simply deem the executive amnesty null and void, and refuse to recognize illegal aliens’ work permits or issue them driver’s licenses.
Why, you wonder, would that be better than filing a lawsuit? In a certain sense, it wouldn’t — because winning that suit would strike down Mr. Obama’s order in all 50 states. Which is not an unlikely outcome, given the order’s extremely shaky legal footing. However —
The judiciary has consistently ruled against the nullification doctrine, asserting its unique, judicial right to declare laws unconstitutional. But this executive order isn’t a law. And given its extremely shaky legal footing, it isn’t difficult to imagine a federal bench recognizing the states’ right to disregard federal orders that don’t clearly have the force of law. And that would be a tremendous — tremendous — blow against the executive’s assumption of legislative powers.
But in the shorter, directer term: It [nullification] would force the Obama administration to go on offense, suing the states to enforce a law that isn’t a law. And I don’t think that case can be made.
I think this is an intriguing idea. Gelernter notes that your state's governor and attorney general should be contacted, especially if you live in a red or purple state.
Nullification may be a non-starter under normal circumstances, but nullifying non-laws should be anything but controversial.
Hat tip: BadBlue News.