States vs. the Federal Government: Is Supremacy a New Fault Line?

Fault Lines in the Constitution addresses twenty fundamental problems in our Constitution that can lead to political and governmental disarray. Regrettably, we did not include a twenty-first chapter on the Impeachment Clause but we tried to make up for it by posting “Impeachment: A Mini-Chapter on What It Is, What It Isn’t, and What Nobody Knows” on this blog. And now, in response to recent events, we want to explore a different clause in the Constitution—the Supremacy Clause—and raise the question: is this aspect of our government another fault line? Or is it actually solid bedrock that should remain unchanged?

We are referring to the passage in Article VI of the Constitution that declares federal laws “the supreme law of the land.” This means that laws passed by Congress and signed by the president (or passed with a veto-proof margin) take precedence over state laws. Article VI also includes a requirement that all public officials—state and federal—take an oath of loyalty to the US Constitution and to the laws that support it. Governors, state legislators, and judges can’t “overrule” executive orders by the president, federal laws, or decisions handed down by federal courts.

Because federal laws and judicial decisions take precedence over state and local ones, Article VI is called the “Supremacy Clause.” It is one of the most important parts of the Constitution and, usually, has not been treated as a “fault line.” But it is being challenged now has it has been in the past.

In the nineteenth century, states sometimes tried to nullify or overturn federal laws by declaring them to be unconstitutional, regardless of what the federal courts declared. The most famous episode occurred in 1828, when South Carolina provoked the so-called “Nullification Crisis” by protesting a national tariff that the state considered unfair to southern manufacturers. President Andrew Jackson even threatened to send federal troops into South Carolina to enforce the law. Fortunately, a negotiated settlement made that act unnecessary. Nevertheless, the notion that states might be able to nullify acts of Congress hovered in the air at least until the Civil War.

And now, like a zombie, the idea of nullification, which was long thought to be dead, might reemerge from the grave. Officials in several states have recently begun challenging the basic tenets of federal supremacy. Our home state of Texas offers two especially interesting examples.

COVID-19 vaccine mandates. In September 2021, President Joe Biden, acting under authority granted the Department of Labor to protect the health of American workers, mandated that all private businesses with one hundred or more employees must be sure that its workers are vaccinated against the COVID-19 virus. Nevertheless, in October Texas Governor Greg Abbott issued an executive order banning all vaccine mandates in the state.

Leaders of large corporations located in Texas didn’t know whether to follow state or federal law. At the end of its session, the legislature did not support the governor’s position but, until then, confusion reigned

Abortion rights. In 1973, the US Supreme Court decided, in a case called Roe v. Wade, that the Constitution protects the right to have an abortion without excessive government intervention, at least up to the time the fetus becomes “viable,” which is regarded by most doctors as occurring around the twenty-sixth week or so of pregnancy.  Nevertheless, in 2018, the state of Mississippi passed a law banning abortion after fifteen weeks of pregnancy. The law has been contested, and the Supreme Court will consider the case in December 2021.

But Texas decided not to wait around to find out if fifteen weeks will become the new limit for anyone to choose an abortion. Instead, the Texas legislature passed a law in the summer of 2021 banning abortions for any reason after six weeks of pregnancy. Overlooking protests that this law essentially overrules Roe v. Wade, the Supreme Court allowed the Texas law to take effect.

Perhaps these actions by elected officials in Texas should not come as a surprise. In 2016, Governor Abbott proposed a national convention to amend the Constitution. In particular, he argued for an amendment that would allow Supreme Court decisions and federal laws to be overturned if two-thirds of the states oppose them.

There are many arguments for allowing or limiting abortions. (We, the coauthors, see scientific and health merit in mandating certain vaccines, including against COVID-19, smallpox, and other infectious diseases.) Still, the Supremacy Clause means that, once a policy is decided at the national level, it is the duty of state officials to comply with it, even if they think it is a mistake. By ignoring lawful commands of the national government, state officials are challenging US Supreme Court decisions. So, it’s not clear why the Supreme Court has allowed a state to nullify its own determination of what the Constitution means. Perhaps the issue will be clarified when justices decide the case in 2022.

Meanwhile, should we applaud a return to nullification as a way for states to demonstrate their unhappiness with national policies? Or, does this reveal, as fault lines do at times, that the stability of the Constitution is at risk?