Democrats try their hand at nullification

Prior to the Civil War, some states advocated a theory of constitutional law that each state has a right to nullify, or not follow, a federal law.  The basis of this argument is that each state retains enough sovereignty to decide the constitutionality of laws.  The purpose was to have federal law not apply in the state if the state disagreed with the law on constitutional grounds.

The theory started with John Taylor of Virginia, Thomas Jefferson, and James Madison.  They belonged to Democrat-Republican Party, which opposed President John Adams, of the Federalist Party, over the Alien and Sedition Acts of 1798.  Specifically, they opposed the Sedition Act that made it a crime to criticize the government.  Taylor, Madison, and Jefferson argued that a state can judge whether a federal law is constitutional.  It was part of the states' rights doctrine.

Madison and Jefferson made these arguments before the Supreme Court, in Marbury v. Madison, 5 U.S. 137 (1803) held that the Supreme Court judges the constitutionality of laws.  But the nullification doctrine persisted and was advanced by John C. Calhoun, of South Carolina, against Andrew Jackson, which almost led to war during President Jackson's administration.

The nullification doctrine has never been adopted as law by any federal  court.

It appears, though, that the Ninth Circuit's decision, and Judge Robart's decision, in State of Washington v. Trump is based on the nullification doctrine.  That is the practical effect of the ruling, and the underlying premise of the claim that the State has interests that the Court must balance against the interests of the immigration ban to determine the constitutionality of Trump's executive order banning immigrants from certain countries.

The premise of the arguments made by the State of Washington is that the temporary ban, based on 8 USC 1182, can be reviewed by the State of Washington to decide if it serves the interests of the State of Washington.  Washington argued that the ban affected its universities and businesses, and Robart and the Ninth Circuit agreed.

Neither Robart nor the three-judge panel discussed section 1182,  which gives the president the exclusive authority to restrict immigration based on a finding made by the president.

Those who advocated nullification two hundred years ago did not want the federal government to impose its will on a state.  Now those opposing the ban on immigration have filed suit to have the state's view imposed on the rest of the country by virtue of the temporary restraining order that Robart applied nationwide.

We can see elements of this nullification doctrine in the various states and cities that declare themselves "sanctuary" cities or states in that they will not comply with federal immigration laws in notifying the Immigration and Customs Enforcement (ICE) of the arrest of illegal aliens, nor will they hold illegal aliens for ICE. 

The Supreme Court must issue a stay of the Ninth Circuit decision and dismiss the suits challenging the temporary ban.

It must rule that the states do not have standing to bring lawsuits when the real plaintiffs, the real parties in interest, are residents of the seven countries designated as risks.  Foreign residents are not protected by the U.S. Constitution.

The Supreme Court must rule that the courts do not have the power, or subject matter jurisdiction, to consider the merits of the executive order because Section 1182 vests that power solely in the president.

Prior to the Civil War, some states advocated a theory of constitutional law that each state has a right to nullify, or not follow, a federal law.  The basis of this argument is that each state retains enough sovereignty to decide the constitutionality of laws.  The purpose was to have federal law not apply in the state if the state disagreed with the law on constitutional grounds.

The theory started with John Taylor of Virginia, Thomas Jefferson, and James Madison.  They belonged to Democrat-Republican Party, which opposed President John Adams, of the Federalist Party, over the Alien and Sedition Acts of 1798.  Specifically, they opposed the Sedition Act that made it a crime to criticize the government.  Taylor, Madison, and Jefferson argued that a state can judge whether a federal law is constitutional.  It was part of the states' rights doctrine.

Madison and Jefferson made these arguments before the Supreme Court, in Marbury v. Madison, 5 U.S. 137 (1803) held that the Supreme Court judges the constitutionality of laws.  But the nullification doctrine persisted and was advanced by John C. Calhoun, of South Carolina, against Andrew Jackson, which almost led to war during President Jackson's administration.

The nullification doctrine has never been adopted as law by any federal  court.

It appears, though, that the Ninth Circuit's decision, and Judge Robart's decision, in State of Washington v. Trump is based on the nullification doctrine.  That is the practical effect of the ruling, and the underlying premise of the claim that the State has interests that the Court must balance against the interests of the immigration ban to determine the constitutionality of Trump's executive order banning immigrants from certain countries.

The premise of the arguments made by the State of Washington is that the temporary ban, based on 8 USC 1182, can be reviewed by the State of Washington to decide if it serves the interests of the State of Washington.  Washington argued that the ban affected its universities and businesses, and Robart and the Ninth Circuit agreed.

Neither Robart nor the three-judge panel discussed section 1182,  which gives the president the exclusive authority to restrict immigration based on a finding made by the president.

Those who advocated nullification two hundred years ago did not want the federal government to impose its will on a state.  Now those opposing the ban on immigration have filed suit to have the state's view imposed on the rest of the country by virtue of the temporary restraining order that Robart applied nationwide.

We can see elements of this nullification doctrine in the various states and cities that declare themselves "sanctuary" cities or states in that they will not comply with federal immigration laws in notifying the Immigration and Customs Enforcement (ICE) of the arrest of illegal aliens, nor will they hold illegal aliens for ICE. 

The Supreme Court must issue a stay of the Ninth Circuit decision and dismiss the suits challenging the temporary ban.

It must rule that the states do not have standing to bring lawsuits when the real plaintiffs, the real parties in interest, are residents of the seven countries designated as risks.  Foreign residents are not protected by the U.S. Constitution.

The Supreme Court must rule that the courts do not have the power, or subject matter jurisdiction, to consider the merits of the executive order because Section 1182 vests that power solely in the president.