‘Nullification’ Nonsense

By  Charles C. W. Cooke

Monday, October 14, 2013

Politics, at least for our stunted, prefabricated age, has been conducted in particularly colorful language in the past few weeks. At times, the accusations have been so various that it has been difficult to distinguish between the mere insults and the wildly over-the-top slurs. But, as the Republican party’s quixotic stand on principle has turned into an actual federal shutdown, the reflexive rudeness has given way to deeper charges, among which is a new meme: that the House’s intransigent behavior is akin to “nullification.”

This imputation consists of more than just rhetorical fluff. On his website two weeks ago, Andrew Sullivan set forth a rather dramatic interpretation of the shutdown:

    This is not about ending Obamacare as such (although that is a preliminary scalp); it is about nullifying this presidency, the way the GOP attempted to nullify the last Democratic presidency by impeachment.

Sullivan was expressing a view that has gained a certain currency on the left. Salon’s Michael Lind contended at length a fortnight ago that the Tea Party “should be called the Fort Sumter movement.” This is a theme that ThinkProgress’s Zack Beauchamp copied rather poorly in his own jumping-on-the-bandwagon essay a few days later, and which MSNBC has been trying to sell for the better part of a year.

Such ham-fisted attempts to understand why the American system of government yields conflict and not comity almost make one long for the catch-all distaste of a Chris Hayes or a Dylan Matthews, both of whom have noticed that the Constitution is intrinsically built to divide power, and that the discord it inevitably yields is not an aberrant development of recent years but the obvious product of its design. To understand the American system is to grasp that our current impasse is by no means exceptional, and, in consequence, that there is little point in wasting time looking around for bogeymen or ghosts when the culprit is there in plain sight. If you want to blame someone for our problems, it should be James Madison, not John Calhoun.

There have been 17 shutdowns before this one, and a host of debt-ceiling fights to boot. Some of these happened during periods of divided government; others happened during periods of unified government. All told, they are a bipartisan game, although it seems that Democrats prefer to shut down things more than Republicans do. Fifteen of America’s previous funding gaps occurred when Democrats controlled the House, and five of them came to pass while Democrats ran every single branch of government. Some progressives like simplistically to claim that America’s two parties “switched places” in 1964 — a trade leading to the predominance of racist white southerners in the GOP eager to burn down the government to get what they wanted. If so, then one has to wonder why the vast majority of funding gaps occurred at the insistence of the good guys in what, by the time the first such gap came along in 1976, was allegedly the New Democratic party.

Funnily enough, progressives never address this question, nor do they acknowledge that the first real debt-limit fight happened in 1953, when President Eisenhower was “held hostage” by his own party, which at that point was popular pretty much everywhere except for the Old South that we are told has risen anew under under Gadsden flags rather than white hoods. Indeed, if staunch congressional opposition, government shutdowns, and high-profile debt-limit fights are now to be cast as examples of nullification, then Congress has evidently tried to nullify not only the presidencies of Bill Clinton and Barack Obama, but also those of Dwight Eisenhower, Jimmy Carter, Ronald Reagan, and George H. W. Bush.

Of course, a muscular Congress does not equal “nullification” at all. At the rotten philosophical root of the claim that it does is the peculiar idea that the Republican House’s steadfast opposition to Obamacare is inappropriate because Obama was reelected as the head of the executive branch and the Democratic party retained control of the Senate. Leaving aside the salient facts that Obamacare remains unpopular nationally — and that 34 of the 50 states declined to set up exchanges for the law — this conclusion is constitutionally and historically confused. Contrary to the claims of progressives nationwide, there simply is no such thing as a “referendum election” on a law. And, even if there were, it would be downright weird to claim that the 2012 election — which returned divided government, not unified government — can plausibly be construed to be one.

Moreover, the argument that the modern GOP is attempting to nullify the most recent election result simply doesn’t stand up to historically minded scrutiny. In 1984, in one of the most stunning landslide victories in American history, Ronald Reagan won 49 states. Simultaneously, the Democrats retained control of the House. If they are to be consistent, the “nullification” brigade would have to argue that Tip O Neill’s trenchant and persistent opposition to many of Reagan’s initiatives — which, remember, led to eight shutdowns in total — served as some sort of insurgency. Is this their position?

Were shutdowns over defense, the Fairness Doctrine, crime policy, civil-rights legislation, foreign aid, and drilling on federal land attempts to delegitimize Reagan in his first term? How about O’Neill’s successful defunding of the MX- and Pershing-missile programs? Was the implication here that Reagan’s presidency should be “nullified”? And what about the second term? After Reagan’s policies on labor contracts, offshore oil rigs, and welfare were “upheld” by the people in the 1984 election, O’Neill continued to fight them so hard that he shut down the government in their honor in 1986. “All of those,” the Washington Post’s Dylan Matthews noted in his compendium of American shutdowns, “were policies supported by House Democrats and opposed by Reagan and Senate Republicans.” Just like Obamacare, in other words.

Had you told Tip O’Neill in the late 1980s that he was expected to take a back seat because the White House and the Senate were both run by Republicans, he rightly would have laughed in your face. And then he would have reminded you that he was the speaker of the House and that the House was constitutionally preeminent in matters fiscal and legislative. Are we, to borrow Sullivan’s own words, seriously to take this as evidence that Reagan was the victim who “played punctiliously by the constitutional rules” while Democrats in Congress decided that those “rules are for dummies and suckers”? I think not.

If we are so liberally to play with language, it is worth pointing out that the only political actor who has thus far succeeded in “nullifying” any part of Obamacare is the president himself. Over the past three years, Barack Obama has unilaterally and illegally delayed parts of his signature law — and a host of other laws, too — because he deemed them politically inconvenient or unworkable. This is illegal, an extreme “act of constitutional vandalism,” to borrow the favored style of the shutdown’s hysterics.

There is one branch, as it so happens, that can effectively change the law unilaterally. As James Madison explained in Federalist No. 58, one branch can try to effect existing law in a more brutal manner if necessary, armed as it is with “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” That branch is not the presidency — whose role is to faithfully execute the law — but Congress.

My suspicion is that, as much as anything else, “nullification” is a word that is used consciously and deliberately as a cudgel — especially at the moment, when we have a president who is black. Accusing someone in America of seeking to “nullify” a given power is rhetorically akin to sticking the label “defenders of states’ rights” onto advocates of robust federalism. The accusers do not simply intend to imply that their opponents’ actions are illegal or illegitimate; they mean to taint them with the racism brush — something that Sullivan does throughout his screed.

This may be deeply unfair, but it is politically smart. While actual nullification remains a fairly popular instinct on both the left and the right — conservatives tend to pledge to ignore new federal gun laws; progressives, to ignore federal drug laws — the loudest and best-known example of nullification in the historical record is from Alabama’s Democratic governor, George Wallace, who vowed to defy federal desegregation orders in the name of “segregation now, segregation tomorrow, segregation forever.” Wallace’s defiance was so vehement that Martin Luther King Jr., in his seminal “I Have a Dream” address, described the governor as “having his lips dripping with the words of interposition and nullification.” The association between nullification and racism has, alas, stuck.

William F. Buckley Jr. once answered a question about whether his support for salvaging items from the wreckage of the Titanic was akin to supporting “grave robbing” by answering, wryly, “No, because it isn’t robbing graves.” When Republicans who are exercising the constitutionally enumerated powers of the part of government they control are asked if they are engaging in “nullification,” they should have a similar answer ready: “Go and buy a dictionary — and a history book.” Words mean something. Let’s try and keep it that way.