The nullification doctrine posits that, as the federal government is the product of the Constitution, and the Constitution is a compact of the states, it’s the states that have the final say on any law’s constitutionality. If a state determines that a law exceeds the terms of the compact to which it agreed, it has the right to nullify that law within its own borders.
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.
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