CATO Chairman: States Can’t Nullify; Supreme Court Is Our Remedy

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.


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  • PaleRider

    Well they would be exactly incorrect about that!

    • texaschris


    • Robert Alexander

      UP is down left is right assholes are saints

  • texaschris

    What do you call a libertarian think tank that endorses the federal government’s use of force on innocent citizens?

    Surely not “libertarian”…

  • Frank_O

    “… 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.” -T.W. above

    You’d think we have enough troubles these days without both “conservative” & “libertarian” think tanks stabbing us in the back as we look for non-violent ways to put the Federal Government back into the small government box that our Founding Fathers wanted.

  • MalcolmReynolds

    The Supreme Court will nullify unconstitutional laws? Good luck with that one.

  • Yahoo

    Well, the Cato Institute is wrong. The Supreme Court has said that the Constitution
    is self-executing–that is, you don’t have to ask anybody what it means–you can decide
    that for yourself.

  • Morpheus

    For many years the Heritage Foundation has been a nest of neoconservative ideologues and also apparent has been the role of CATO as a gatekeeper organization. What activists and those who want to be informed citizens need to understand is that we must always be cognizant of the frequency of limited hangouts proffered by these groups, observe their tepid stances on critical issues, how they ignore some problems altogether, and refuse to teach their followers how to connect the dots. Also, look at the MSM organizations that readily quote them and how many of their supporters or sponsors are deeply entrenched in the Establishment.

  • David McElroy

    I don’t respect CATO or the Heritage Foundation after their rejection of our states’ rights to nullify federal laws they find unconstitutional. To reject nullification is to reject Madison and Jefferson, two Founding Fathers who were most intimate with America’s founding documents and the deliberations of the patriots and Continental Congress that caused them to be written. If Jefferson and Madison supported nullification, where do these organizations get off rejecting it? Their reasoning is surely twisted and subversive!

  • eleighs

    Nullification exists in the Constitution in case the three branches of the federal government are corrupted, as they now are. The states are in charge, and they delegate a small portion of power to the federal government to defend our borders and a small number of other responsibilities.

  • Douglas H. Book

    More of those “conservative” statists who have done so well in the past 2 elections!

  • Herbert Schultz

    the 2nd amendment is there to “nullify” unconstitutional laws…