Nullification and the Supreme Court

DEFINITION: The theory that the states are the final arbiters of the limits of national authority and that each may veto the enforcement of federal laws it deems unconstitutional, at least within its own boundaries.

SIGNIFICANCE: Primarily associated with the antebellum South, nullification was invoked to resist national policies that were locally unpopular. The Supreme Court has consistently rejected such claims.

First articulated by Thomas Jefferson in his draft of the Kentucky Resolutions of 1798, nullification rests on the theory that the US Constitution is a compact among the sovereign states. The authorities of the national government are carefully limited, encompassing only those powers surrendered by the states. Because the national government is a creation of this compact, it cannot judge the limits of its own authorities under it. States, having no superior authority among them, must each judge for themselves whether the national government has exceeded those limited grants of authority.

The Court has long rejected the nullification doctrine. In cases such as Chisholm v. Georgia (1793), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821), the Court found that the Constitution is a compact among the people, acting as a national community. The Constitution establishes a federal government of limited authorities that are to be given broad interpretations and the operation of which cannot be limited by the states. In Ableman v. Booth (1859, or December term 1858), the Court rebuffed Wisconsin’s attempt to obstruct enforcement of the Fugitive Slave Act of 1850 and affirmed the authority of the Court to determine the constitutionality of federal legislation and that state courts could not interfere with federal officers acting under federal law. This authority was reaffirmed in Cooper v. Aaron (1958).

In the 2020s, some experts drew parallels between historical instances of nullification and the pattern of state-level defiance against Supreme Court rulings in the early twenty-first century, warning that both conservative and liberal states may increasingly resist Supreme Court decisions with which they disagree. Several states passed or proposed laws aimed at invalidating federal statutes within their jurisdictions, most focusing on federal gun control, healthcare, voting rights, immigration, and environmental regulations. For example, in Murphy v. NCAA (2018), the Court overturned the Professional and Amateur Sports Protection Act, which prohibited states from authorizing sports betting. This ruling reaffirmed the anti-commandeering doctrine, which bars the federal government from forcing states to enforce federal laws. In 2021, Missouri passed the Second Amendment Preservation Act, claiming to nullify federal firearms regulations; however, in United States v. State of Missouri (2023), a federal court struck down key provisions and reaffirmed that states cannot invalidate federal law or prevent federal agents from enforcing it. In 2024, the US Court of Appeals for the Eighth Circuit affirmed the judgment holding that the attempt to declare federal gun laws invalid in Missouri violated the Supremacy Clause. In Allen v. Milligan (2023), the Court ruled that Alabama’s congressional map violated the Voting Rights Act by limiting Black Americans’ voting power and the remedial proceedings that followed required the state to adopt a map that included a second majority-Black district. However, Alabama’s revised map did not meet the Court’s requirements—interpreted as a deliberate challenge to federal authority.​ Subsequent federal court orders required Alabama to redraw its congressional map after determining that its revised plan continued to violate the Voting Rights Act. Following Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade (1973), some states considered or passed laws attempting to invalidate federal rules regarding abortion medication access and traveling across state lines for abortion. Although largely symbolic, some of these efforts provoked legal challenges and federal pushback.

Bibliography

Allen v. Milligan. Supreme Court of the United States, 8 June 2023. www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf. Accessed 7 Apr. 2026.

Beatty, Lauren Moxley. “The Resurrection of State Nullification—and the Degradation of Constitutional Rights: SB8 and the Blueprint for State Copycat Laws.” The Georgetown Law Journal, vol. 111, 2022, www.law.georgetown.edu/georgetown-law-journal/submit/glj-online/glj-online-vol-111/the-resurrection-of-state-nullification-and-the-degradation-of-constitutional-rights-sb8-and-the-blueprint-for-state-copycat-laws. Accessed 7 Apr. 2026.

Desai, Samarth. “Looking Back: Nullification in American History.” The National Constitution Center, 4 Feb. 2022, constitutioncenter.org/blog/looking-back-nullification-in-american-history. Accessed 7 Apr. 2026.

Epps, Garrett. “The Looming Supreme Court Nullification Crisis.” Washington Monthly, 14 Aug. 2023, washingtonmonthly.com/2023/08/14/the-looming-supreme-court-nullification-crisis. Accessed 7 Apr. 2026.

Silverbrook, Julie. “The Nullification Crisis.” Bill of Rights Institute, billofrightsinstitute.org/essays/the-nullification-crisis. Accessed 7 Apr. 2026.

United States, Court of Appeals for the Eighth Circuit. United States v. Missouri. No. 23-1457, 26 Aug. 2024, ecf.ca8.uscourts.gov/opndir/24/08/231457P.pdf. Accessed 7 Apr. 2026.