Chapter 2 Case Study: Texas and Modern-Day Nullification

The United States utilizes a federal system of government, where power is divided between the national government and the states. Due to the ambiguity within the Constitution, the relationship between these two levels of government is rife with controversy. One area where there frequently is clarity is that federal laws have supremacy over state laws. From time to time, however, states have sought to push the boundaries of what they are able to accomplish under the mantle of states’ rights. Today, Texas is at the forefront of that fight.

In 2023, the Texas legislature passed Senate Bill 4, which directs Texas police to arrest anyone crossing into Texas from Mexico illegally.^[1] Texas enacted a makeshift barrier throughout the Rio Grande, using razor wire and fencing to prevent illegal crossings. When the Department of Homeland Security directed Texas to remove it so that federal border agents could do their jobs, three migrants drowned in the river while federal agents were denied access.^[2] Even though the supremacy clause (Article VI, Clause 2) clearly states that federal laws are the “supreme law of the land,” Texas Governor Greg Abbott sought to relitigate the relationship between states and the federal government. Texas, not the US Constitution, is “the supreme law of the land and supersedes any federal statutes to the contrary,” said Abbott.^[3]

Abbott carries on the legacy of former Vice President John C. Calhoun, who championed the cause of nullification, the idea that states have the ability to refuse or ignore federal laws they believe to be unconstitutional. This perspective believes that the country was formed as a compact between states, and thus the federal government belongs to the states. This idea, called compact theory, has routinely been rejected by legal scholars and the Supreme Court as unconstitutional and is generally viewed as abhorrent by posterity. The US Supreme Court consistently has ruled that immigration policy is the purview of the federal government and has struck down state actions, most recently in the 2012 case Arizona v. United States.^[4]

The federal government sought to block the law, suing the state of Texas. The Supreme Court heard this case, United States v. Texas, however, opting to let it stay in effect while the judicial proceedings played out. Currently, Senate Bill 4 remains blocked by an injunction from the Fifth Circuit Court of Appeals. A resolution in this specific case is likely imminent, while the idea that states can choose to ignore federal laws they disagree with persists as a fringe constitutional theory; how states and the federal government should work together is likely to remain a contentious issue.

Critical Thinking Questions

Should the United States be thought of as formed with the consent of the people or with the consent of the states?

What policy topics do you believe should be addressed by the federal government? By the states? By local governments? Which topics require all three?

What should states be able to do when partisan gridlock at the national level prevents meaningful legislation on important policy topics like immigration?