Rather than accept that the federal government supersedes the states when operating within the sphere of its enumerative powers, the claim then and now was that states could pick and choose which laws they would follow and enforce.
In the lead up to the Civil War, slaveholding states embraced the idea that they could nullify federal laws they didn’t agree with. Even if these laws were duly passed by the House and Senate, then signed by the President according to the Constitution, Southern Democrats feared that the tide was turning against slavery and it was only a matter of time before there was enough of a majority to overcome a filibuster or even pass an amendment that outlawed the abhorrent practice. Rather than accept that the federal government can supersede the states when operating within the sphere of its enumerative powers, as had been embraced by even by slaveholding Presidents such as Andrew Jackson, the claim was that states could now pick and choose which laws they would follow and enforce.
After President Abraham Lincoln was elected and Southern states were convinced Republicans had the necessary majority to threaten slavery, nullification became succession and outright rebellion. Like many events of historical significance, the final outcome began much earlier. Decades before the Civil War, slaveholding states referred to nullification as “imposition” and applied the doctrine to other pieces of legislation in what would serve as something of a trial run. The idea itself originated during the Presidency of John Adams shortly after George Washington left office. While future President Thomas Jefferson was serving as Vice President, he colluded with James Madison, also a future President, to undercut key pieces of legislation. After Adams passed the Alien and Sedition acts in 1798, Jefferson and Madison secretly wrote the Virginia and Kentucky Resolutions that declared the acts unconstitutional and claimed they would not be enforced within those states. While the proximate cause of the Resolutions was a defense of free speech, they introduced the idea that the states can stand between citizens and the federal government. According to Douglas C. Dow, writing for the Free Speech Center at Middle Tennessee State University, “The intent of the resolutions was to induce other state legislatures to pick up the critique and pass similar resolutions, thus acting as decentralized opposition to [Adam’s] Federalists. Judged by this standard, most scholars have considered them to be a failure, but a recent study has indicated that the Virginia and Kentucky Resolutions got more state support than has been generally recognized.” Tennessee called for the repeal of the Alien and Sedition Acts, Georgia adopted a resolution “hoping” Congress would repeal them, North Carolina and Pennsylvania split on repeal while they were also debated in New Jersey. Kentucky was the only state that formally adopted the Resolutions and those were the most radical of them all, declaring outright that the acts were null and void. While Mr. Dow acknowledged that their legacy was “complex” and the resolutions are sometimes seen as a defense of civil liberties, he believes “their dominant legacy is as an exemplification of the constitutional doctrine of nullification,” a legacy that would lead to crisis three decades later and war six decades later.
While no one is calling the recent showdown between the federal government and state and local governments in Portland, Oregon and Chicago, IL a nullification crisis, that’s exactly how it should properly be seen. Not surprisingly, the logic underlying the rejection of federal law and power at the state and local level began years earlier. In 1971, Berkeley, California passed a resolution to grant sanctuary to draft dodgers during the Vietnam war, but by 1982 the same concept began to apply to illegal immigrants when churches and other religious institutions started the Sanctuary Movement, declaring they would protect and harbor Central American Refugees, primarily from El Salvador and Guatemala that the federal government had targeted for deportation. In 1985, San Francisco passed legislation restricting the use of city funds to help with immigration enforcement and Chicago Mayor Harold Washington signed an executive order restricting cooperation with federal authorities. As of this year, there are twelve states that have declared themselves sanctuaries in open defiance of federal law, along with several other cities and counties. Though this has always been a clear violation of the supremacy clause, the federal government and the states adopted have long pretended it wasn’t, preferring to ignore the issue by limiting immigration enforcement in those areas rather than provoke a confrontation, but as we all know, President Donald Trump is a different kind of Chief Executive than any in recent memory. Shortly after getting into office, he threatened to cut off federal funding for sanctuary cities and began initiating lawsuits against these localities. In April, he issued an executive order, recognizing that “some State and local officials . . . continue to use their authority to violate, obstruct, and defy the enforcement of Federal immigration laws” and “[i]t is imperative that the Federal Government restore the enforcement of United States law.” As Attorney General Pam Bondi described it, “Sanctuary policies impede law enforcement and put American citizens at risk by design. The Department of Justice will continue bringing litigation against sanctuary jurisdictions and work closely with the Department of Homeland Security to eradicate these harmful policies around the country.”
While Louisville, Kent has agreed to comply, other areas have escalated the situation even further, effectively moving into open rebellion against the enforcement of duly passed federal law. Earlier this year Illinois Governor and presumed 2028 presidential candidate, JB Pritzker promised to “stand in the way” of federal immigration efforts that broke Illinois law, even though Illinois itself does not have any say in immigration whatsoever and even should they do so, federal law would supercede their efforts according to our Constitutional order. “We have a law on the books in Illinois that says that our local law enforcement will stand up for those law-abiding, undocumented people in our states who are doing the right thing, and we’re not going to help federal officials just drag them away just because” ICE officers believe they are here illegally, though once again that is most certainly the legal standard. Last month, he referred to ICE operations in his state as “authoritarianism,” an attack on all Americans, and told them to “Get out of Chicago. You are not helping us.” He went on to accuse the Administration of “waging war on our people” to cause “chaos and mayhem in the hopes to deploy military troops against Chicago and Broadview and other suburbs.” “In any other country, if federal agents fired upon journalists and protesters when unprovoked, what would we call it? If federal agents marched down busy streets harassing civilians and demanding their papers … I don’t think we’d have any trouble calling it what it is: authoritarianism.” Earlier this week, he claimed President Trump was staging an “invasion” of Illinois. In between, he filed a lawsuit to prevent the deployment of the National Guard, but while a final ruling has not been made, the judge assigned has let the deployment continue. Most recently, Governor Pritzker claimed, “It’s unconscionable. This has never happened before. They’re calling out troops onto the streets of a state that doesn’t want them and they’re not even telling us where they’re gonna go, what they’re gonna do. This hasn’t happened I don’t think since the Civil War.” He is, perhaps needless to say, wrong. In 1957, President Dwight D. Eisenhower deployed the National Guard to Arkansas to support the desegregation of schools following Brown v. Board of Education – after Governor Orval Fauvus attempted to use them to defy the Supreme Court and keep schools segregated.
Meanwhile, the Mayor of Chicago, Brandon Johnson has gone even further than the Governor, signing an executive order to designated ICE-free zones where federal agents are prevented from entering. “Today, we are signing an executive order aimed at reining in this out-of-control administration,” Johnson said during a news conference on Monday. “The order establishes ICE-free zones. That means that city property and unwilling private businesses will no longer serve as staging grounds for these raids.” In addition, the Chicago police appear to have refused to come to the aid of ICE agents even when they were under attack from rioters. On Saturday, ICE agents were conducting what they described as a routine patrol “when they were attacked and rammed by vehicles and boxed in by 10 cars,” according to the Department of Homeland Security. As they attempted to flee the scene, a woman, who was later found to be armed with a semi-automatic weapon, tried to run the officers down until she was shot by police on the scene. Agents immediately called for back up believing the situation could escalate further, risking themselves and other innocent bystanders. A transcript from the female dispatcher who received the call described the situation while requesting local police officers respond, “Younger male Hispanic wearing all black … wanted for the hit-and-run, this guy fled from the scene. When the offending vehicle crashed, they ran the federal agent off the road, they fled on foot westbound.” Before the police could respond, however, a male voice came over the radio channel ordering them to “stay put,” “Per the chief of patrol: Clear everybody out, we’re not responding over there.” Though the officers were already in route, the female dispatcher followed her orders and told them to stand down, “per the chief of patrol, all units clear out from there, we’re not sending anybody out to that location.” The Police Chief has denied this allegations, but Fox News uncovered an internal department memo that read, “PLEASE CHIEF OF PATROL NO UNITS WILL RESPOND TO THIS AS RELATED FROM 04-Oc5-2025/12:34:44…CALLER IS 1 OF APPROX 30 ARMED PATROL AGENTS (ICE) WHO ARE BEING SURROUNDED BY A LARGE CROWD OF PEOPLE REQUESTING CPD,” suggesting they are lying. We do not know if Mayor Johnson was personally responsible for the order, but at the same time, it doesn’t really matter. He is both flagrantly defying federal law and urging others to do the same.
Ironically, he also insisted that it is President Trump that is waging a Civil War on Chicago, having it precisely backwards, the same as his Governor, saying “The right wing in this country wants a rematch of the Civil War,” at a news conference. “The Trump administration must end the war on Chicago. The Trump administration must end this war against Americans. The Trump administration must end its attempt to dismantle our democracy.” “They have repeatedly called for a rematch, but in the coming weeks, we will use this opportunity to build greater resistance. Chicagoans are clear that militarizing our troops in our city as justification to further escalate a war in Chicago will not be tolerated,” he added, but he could not be more wrong. He is the one waging war on the federal government, not the other way around. We know this because of an incident when the situation was reversed during the Biden Administration. In 2023, Texas Governor Greg Abbott signed into law Senate Bill 4, authorized the building of a border fence and empowered local authorities to enforce immigration law, insisting the federal government was refusing to. The Department of Justice under President Joe Biden sued the state government, arguing that Texas had no authority over immigration matters. Though the case has not been fully resolved, the Supreme Court issued a temporary order prioritizing the federal government, allowing them to cut or move pieces of the wall when they deemed it necessary. At the time, progressives insisted this was the law of the land and there was no argument against it, with the American Immigration Council claiming the Supreme Court “restored some semblance of the status quo.” The Guardian described it this way, “Federal agents were given further confirmation this week at the Supreme Court that they may remove the razor wire, as the enforcement of immigration law is under federal jurisdiction.” Today, however, they are arguing the opposite, or even worse than that if it can be believed. Somehow, they insisted that states do not have the power to augment existing federal immigration law and cheered the Supreme Court for interceding on the federal government’s, but suddenly they have the power to defy it. There is no other way to describe it except as nullification, even more ironic when the advocates of this new nullification school are the self-proclaimed defenders of democracy and democratic norms, and we should all be terrified of the potential results.
Confessions of a Conservative Atheist 