At Law & Liberty, Nelson Lund: Freeing State Courts from SCOTUS. From the introduction:
In his recent forum essay on nullification, Mark Pulliam distinguished between true nullification laws—those in which a state claims that it can refuse to obey federal laws that the state deems to be contrary to the Constitution—and laws that are merely statements of disagreement or vows of non-cooperation. This is an important distinction because the states are under no constitutional obligation to endorse federal laws or to cooperate with the federal government in enforcing them. The Supreme Court itself has rejected attempts to impose an obligation on states to administer federal regulations, and the only serious question is how far the federal government can go in pressuring states to do so.
Immigration sanctuaries, where state or local governments refuse to assist with the enforcement of federal immigration laws, have received considerable publicity. Missouri’s “Second Amendment Preservation Act” offers a variation in which a state law declares that certain gun regulations that have been or could be adopted by the federal government violate the US Constitution. These laws “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.” The statute vaguely requires state officials to protect the rights of law-abiding citizens, and specifically forbids them to enforce these laws.
The US Court of Appeals for the Eighth Circuit recently held that Missouri’s statute is unconstitutional because it violates the Supremacy Clause…
The court admitted that Missouri is constitutionally free to withhold its assistance from federal law enforcement, but condemned the statute for asserting that federal gun laws are “invalid to this State.”
This judicial condemnation is itself unconstitutional because Missouri’s statute does not require or authorize any state officials to violate any federal law.
Agreed. See my post on the Eighth Circuit case here.
But Professor Lund then goes in a different direction:
But perhaps the Missouri legislature’s courageous disrespect for the federal government’s interpretation of the Second Amendment should inspire us to take a careful look at the Supremacy Clause. When we do, we can see reasons for thinking that state courts in general are overly respectful toward interpretations of the federal Constitution adopted by the Supreme Court.
It is almost universally agreed that the federal courts established by Congress—what the Constitution calls “inferior Courts”—must accept the Supreme Court’s interpretation of federal law. That makes sense because the Constitution establishes a hierarchical judicial establishment, and it wouldn’t be much of a hierarchy if the Supreme Court were confined to making suggestions about how its subordinates should decide cases. Reasonable people can disagree about the extent to which inferior courts are bound by obiter dicta in Supreme Court opinions, i.e. remarks that are unnecessary to the reasoning that resolves the case. But that doesn’t mean that inferior courts may disregard the Supreme Court’s interpretations of federal law.
Virtually everyone also agrees that state courts are bound by the Supreme Court’s interpretations of the Constitution and federal statutes. I think this is a mistake, and one that has bad effects on both the federal and state judicial systems. …
I'm a lot less sure of this proposition, but it's worth considering.
(Thanks to Mark Pulliam for the pointer.)
Posted at 6:03 AM