You guys know I don’t spend my time on institutional feuds among libertarians. I defend myself when attacked, but otherwise I’m too busy to bother.
But the Cato Institute has now joined the Heritage Foundation in telling Americans they’re not allowed to nullify unconstitutional laws — because, after all, that’s what we have the Supreme Court for. Plus, says Cato chairman Robert Levy, nullification hasn’t worked so well in the past, though he doesn’t give us an update on how 100 years of relying on the Supreme Court to safeguard our liberties has been going.
Levy does allow the states something, because the Supreme Court has graciously allowed them these things:
First, are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 1992 case, New York v. United States, the Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
So on waste disposal and background checks, we may stick it to the man.
Levy’s article is fairly conventional law school fare, a string of statements that such-and-such must be true because federal courts have said so. It is what I would expect to read from the Heritage Foundation, from John Marshall admirers, and from nationalists. There is nothing particularly libertarian about Levy’s analysis. The message is this: play by the rules. The rules have been laid down by people who despise you, but play by them.