Republican State Rep. Files Unconstitutional Bill to Allow Texas Legislature to Nullify Federal Laws

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Texans like to pride ourselves on our fiercely independent nature, but one veteran Republican state legislator is trying to turn that independent streak into an unconstitutional law. State Rep. Dan Flynn (R-Van) has filed a bill to allow Texas’ state house speaker and lieutenant governor to have the power to “suspend any federal law within Texas’s borders.”

As ThinkProgress summarized, Flynn’s bill lays out the following structure for the legislature to review federal laws:

    The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.

Under Flynn’s proposal, the state house speaker and lieutenant governor could create a committee stacked with loyal right-wing supporters, and use that to choose which federal laws they want the state to follow. In a state where Dan Patrick was just elected lieutenant governor, the idea is a truly terrifying prospect. Patrick is staunchly anti-immigrant and anti-choice, and if he had the power to void the federal laws that protect the rights of women and minorities, Texans could face a bleak future indeed.

Fortunately Flynn’s bill has one major problem. It’s blatantly unconstitutional.

Flynn’s bill is based on a principle called nullification, which posits that states have the right to decide which federal laws are applicable within their borders–nullifying any laws they don’t wish to follow. This notion is explicitly prohibited in the United States Constitution, which declares that federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” The Constitution makes it clear that federal laws are “supreme” over state law, and that states do not have the right to invalidate them. The doctrine of nullification and states’ rights contributed directly to southern states’ decision to secede from the Union, and the start of the U.S. Civil War.

Supporters of nullification argue that because they’re declaring nullified laws unconstitutional, not simply invalid, nullification is permitted. However, the Constitution already provides an avenue to challenge laws that are unconstitutional–the judicial system. This is something that Texas Republicans are quite familiar with, given the number of lawsuits they’ve already filed against the Affordable Care Act, Environmental Protection Agency, and others. Nonetheless, Flynn is moving forward with his effort to join the ranks of Texans sticking it to the federal government by attempting to legalize this unconstitutional practice.

Interestingly enough, one of the other bills Flynn submitted for early filing this session was “a law requiring students take a semester on the U.S. Constitution prior to graduation from high school.” If only Dan Flynn himself had had access to one of those courses when he was in high school, perhaps Texans would not be facing the possibility of an overtly unconstitutional practice becoming codified into state law.

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About Author

Katie Singh

Katie grew up in Austin and has been involved in Texas politics since 2004. She has been a part of several campaigns, from state house races to working at President Obama’s campaign headquarters in 2012. She loves public policy, public health, and tacos.

Katie tweets from @kasingh19.

8 Comments

  1. It is only unconstitutional if the state nullifies a law that the constitution gives the federal government explicit jurisdiction over in Article I Section 8. Otherwise, it is very possible for states to nullify laws.

    • Well yes Congress can change a law which is what that section deals with but the states themselves are not granted the right to nullify a law though they can of course ask the courts to throw a law out which the courts may do if they rule that its unconstitutional.

    • Jonathan

      The bill purports to suspend ALL Federal laws. In other words, by its definition, it is violating Federal law and is therefore unconstitutional. There are many many laws which the Federal law supersedes the state law, so each and everyone of them is violated by this bill.

      This really is an attempt at pseudo succession. We won’t actually secede, but, we’ll just ignore the Federal laws we want to. I blame the Republicans for being too scared of their own shadow to put up moderate R candidates. We all know this state is controlled by one party, but, that doesn’t mean the party has to be comprised of wing nuts like are calling the shots now. If the D’s can start to put up some moderate conservative candidates, they should be able to make some inroads on the party that has lost its center.

  2. This is especially insane considering is also proposing a bill that would require students to take a semester on the U.S. Constitution prior to graduation from high school. Perhaps Rep. Flynn should also take this course.

  3. I find it quite amusing that the author would have so much experience, yet, immanently, somehow she got the power of authority backward.

    “For anyone who is unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president, Thomas Jefferson, when he authored what came to be called the Kentucky Resolutions of 1798. The resolutions made the case that the federal government is a creature of the states and that states have the authority to judge the constitutionality of the federal government’s laws and decrees. He also argued that states should refuse to enforce laws which they deemed unconstitutional.

    reclaiming-american-revolution James Madison wrote a similar resolution for Virginia that same year, in which he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state’s legislature is duty bound to interpose its power to prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.

    These two documents together came to be known as The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, and the phrase, “Principles of ’98” became shorthand for nullification and / or interposition. Over time, “The Principles of ’98” would be invoked by many other states, many times for a variety of issues.

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