Wisconsin Republican Party Rejects "Rabbit Hole of Nullification"

By:  Joe Wolverton, II, J.D.
Wisconsin Republican Party Rejects "Rabbit Hole of Nullification"

Delegates to the Wisconsin state Republican Party annual convention rejected a proposal to support the power to nullify unconstitutional acts of the federal government.

Something is rotten in the state of Wisconsin and it’s the Republican Party.

The state Republican Party held its annual convention last weekend and as reported by the (Milwaukee) Journal Sentinel:

They [the Wisconsin GOP] snuffed out a proposal on secession, nullification and state sovereignty. The resolution that would have permitted lawmakers to nullify Obamacare, Common Core and drone usage in Wisconsin was approved earlier by a regional caucus and a state GOP committee.

"The Republican Party does not want to chase down the rabbit hole of nullification," said state Rep. Chris Kapenga of Delafield.

Rabbit hole, eh? Seems Kapenga has been caught in the Supremacy Clause snare and needs a lesson in constitutional history and federalism to free him.

Despite what many in state legislatures claim, the Supremacy Clause does not declare that federal laws automatically trump state laws without qualification. What it says is that the Constitution "and laws of the United States made in pursuance thereof" are the supreme law of the land.

The supremacy of federal law extends to only those acts made “in pursuance” of enumerated powers. There is no such deference afforded to those acts passed in violation of the federal government’s constitutional authority.

If an act of Congress is not permissible under any enumerated power given to it in the Constitution, it was not made in pursuance of the Constitution and therefore not only is not the supreme law of the land, it is not the law at all.

Constitutionally speaking, then, whenever the federal government passes any measure not provided for in the limited roster of its enumerated powers, those acts are not awarded any sort of supremacy. Instead, they are “merely acts of usurpation” and do not qualify as the supreme law of the land. In fact, acts of Congress are the supreme law of the land only if they are made in pursuance of its constitutional powers, not in defiance thereof.

As Alexander Hamilton wrote in The Federalist, No. 78, “There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”

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