Nullifying Autocracy: How to Fight Trump’s Powerplay

Withdrawal of consent can make a difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and certainly preferable to continuing to depend on obsolete notions.

By Greg Guma

“Nullification is not a “fringe theory,” asserts conservative constitutional scholar Joe Wolverton II. “It is, in fact, an explicit constitutional mechanism designed to prevent federal usurpation—a principle that predates even the ratification of the Constitution itself.” The article in which this controversial argument appears, published on the Tennessee Conservative website, presents arguments you are not likely to see in mainstream sources. 

I’d like to add a few more, specifically focusing from a more progressive perspective on how we can begin to resist autocracy. As Donald Trump makes good on his threat to weaponize the Department of Justice and FBI against his “enemies,” both political and personal, nullification can become an effective tool to protect basic rights and fight back.

Traditionally, nullification occurs in court when a jury declares a defendant not guilty despite agreement — beyond a reasonable doubt — that a crime was committed. It is a legal form of popular resistance, a way for citizens to respond to malicious prosecutions or the unjust enforcement of laws. At times it has also been used to free popular defendants.

But the strategy need not be restricted to courtrooms. The Brennan Center for Justice explains: “At a time when essential human rights like bodily autonomy are under attack, immigrants face deportation on trumped-up charges, and the government has threatened to use its vast power to punish undesirable citizens, it is easy to feel powerless.” However, by employing nullification strategies, “the people retain the power to fight back and protect the freedom of their fellow Americans.”

As I explained in Restless Spirits & Popular Movements, “The argument for nullification rests on the theory that the states created the national government. Therefore, they have the right to judge the constitutionality of federal laws and potentially refuse to enforce them. Nullification was used when American colonists nullified laws imposed by the British. Since then states have used it to limit federal actions, from the Fugitive Slave Act to unpopular tariffs.” 

Like other states, Vermont had direct, dramatic experience with nullification early in its history. In November 1850, for example, the state legislature approved a so-called Habeas Corpus Law that required officials to assist slaves who made it to the state. The law rendered the Fugitive Slave Act effectively unenforceable. This was a clear case of nullification, a controversial concept even then. Poet John Greenleaf Whittier recommended such tactics, while Virginia governor John B. Floyd warned that they could push the South toward secession. 

Even earlier, support for nullification emerged in reaction to the Adams era Sedition Act. This was one of the key events that prompted the Kentucky Resolve of 1798, written by Thomas Jefferson, and the almost identical Virginia Resolve penned by James Madison. In Section One of his version, Jefferson stated that federal authority wasn’t unlimited, and, if it went too far, need not be obeyed. 

The national government wasn’t the “final judge” of its own powers, Jefferson suggested, and various states had a right to decide how to handle federal overreach. Madison’s Virginia version declared that, in the case of a deliberate and dangerous abuse of power, states not only had a right to object. They were “duty bound” to stop the “progress of the evil” and maintain their “authorities, rights and liberties.”

Ten years later, after President Jefferson enacted a trade embargo in response to British maritime theft and the kidnapping of sailors, legislatures nullified the law using his own words and arguments. On February 5, 1809, the Massachusetts legislature declared that the embargo was “not legally binding on the citizens of the state” and denounced it as “unjust, oppressive, and unconstitutional.” Eventually, every New England state, as well as Delaware, voted to nullify the embargo act.

Today, defenders of the status quo — and that includes AI responses to inquiries about nullification — argue that it is merely a rhetorical tool, a theory “without legal or practical application.” Yet, even before the Trump administration began its assault on various parts of the US Constitution, state legislatures were debating laws designed to nullify federal actions in areas from gun control and health care reform to marijuana possession and overseas troop deployments. More recently, it has been mentioned as a strategy to resist unfair abortion regulations, defend birthright citizenship, and challenge immigration laws.

Ironically, one of the early nullification fights emerged between states and the federal government in the 1800s, a precursor that ultimately led to the Civil War.

The Supreme Court has consistently upheld the principle of federal supremacy, arguing that states cannot nullify federal laws. However, if a Court majority doesn’t acquiesce to the Trump regime’s current push to nullify the separation of powers, due process and other constitutional guarantees, there is little doubt that Trump will not hesitate to defy it. He has already taken the first steps by side stepping and declining to follow court orders. In doing so, he is providing the spark for additional local, state and regional nullification moves to follow.

Wolverton goes further than I would in his judgement about the historic role of the Supreme Court. He accuses it of being “an accomplice in the unconstitutional expansion of federal power” for two centuries. But I do agree with him that the Court has frequently “rubber-stamped unconstitutional federal overreach” and “is not the final arbiter of what is and is not constitutional.” That power rests in the Constitution itself. 

His viewpoint also points to another argument I’ve made over the years. Although the left and right have been culturally polarized for generations — disagreeing over racism, abortion, immigration, climate change and the distribution of wealth — there is some common ground. One area that could prove crucial now, as the federal government slides toward autocracy, is the belief that withdrawal of consent can make a huge difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and that is certainly preferable to continuing to depend on obsolete notions about federal-state relations and an 18th century social contract that can no longer protect us.

MANAGING CHAOS: Adventures in Alternative Media

An eye-witness account that explores the unique, tumultuous history of Pacifica radio and alternative media in America. 

“a great read…revealing and sometimes brutal” 

— the Progressive

Full Review: Who Will Tell Us the News?

“A real page-turner” — David Goodman and Marc Stern

On the Air: Radio with a View interview, 9/22/2024

On Town Meeting TV: 

Meghan O’Rourkc interviews Greg and Robin Lloyd 

After an eclectic career, Greg Guma discusses the evolution of radio and television, the impacts of concentrated media ownership, the rise of the alternative press, his own work in Vermont — before and during a progressive revolution that changed the state’s power structure, and decades later, how he managed the original listener-supported radio network. 

Weaving together an intimate chronicle of what he saw as Pacifica Radio’s first post-revolution CEO and episodes from his earlier life as a stressed out student, rookie reporter, radical organizer and unconventional editor, Guma explores the challenges of maintaining democratic institutions in a culture of distrust and polarization, of striking the delicate balance between truth and advocacy, observation and participation, and of managing conflicts with persuasion instead of force. 

Managing Chaos is a media saga, a personal story, and a cautionary tale.

…a skilled writer who has immersed himself in Vermont life and politics for decades.  — Sasha Abramsky

…the first executive in Pacifica who has been willing, and able, to share his experiences…. They ought to be required reading for all PNB and LSB members.  —  Nalini Lasiewicz

…a powerful voice. — Michel Chossudovsky 

Buy Managing Chaos

317 Pages, illustrated, Maverick Books

From the book…

“The deeper I looked the more convoluted and intractable the problems appeared: Charges and counter-charges of secrecy, waste, racism, sexism, harassment and violence, turf battles over local fiefdoms, manipulation, and alleged fraud. It seemed like a fratricidal war with no end in sight. 

“It reminded me of how easily reality can be blurred by misinformation. That July, Jeff Ruch, the director of Public Employees for Environmental Responsibility, had issued a relevant assessment of a much larger and even more dysfunctional organization. ‘The federal government,’ he concluded, ‘is suffering from a severe disinformation syndrome.’ 

“Could this be what afflicted Pacifica? Spurious theories presented as facts, information massaged to promote a specific spin, cherry-picked evidence. Whether intentional or not, Pacifica’s convoluted politics and history seemed to have created, as Bob Woodward put it in his book that summer about Watergate source Deep Throat, “an entire world of doubt."

“Who could unravel such a mess, no less get the larger community to look beyond its debilitating bitterness and distrust? Probably not a middle-aged activist editor from one of the smallest, whitest states in the country….” 

“…. The chance to work at Pacifica radio came my way by accident. More than a decade earlier I’d met an activist librarian on a plane by striking up a conversation about Z, a left-wing magazine she was reading. Even before 9/11, you rarely saw people on airplanes engrossed in “alternative” publications. 

“At the time I was editing Toward Freedom, a small but respected magazine that had covered international affairs from a “progressive perspective” since the early 1950s. We hit it off, and the librarian provided an invaluable stream of news, ideas and leads for articles over the next decade. She was also a loyal yet disgruntled listener to a Pacifica station, and when the top job became available, she let me know. 

“I had some of the qualifications, starting with management and development experience. In my twenties, I worked with schools and anti-poverty groups developing paraprofessional training programs. In my thirties, I edited Vermont’s groundbreaking alternative weekly, the Vanguard Press, and helped usher in a progressive political era. I led the revival of Toward Freedom and, for more than a decade, edited and wrote on global politics. I also launched and ran bookstores in Burlington and Santa Monica, CA, and coordinated progressive organizations that worked on peace, justice, and immigration issues in Vermont and New Mexico. Just the year before, I had co-founded a new statewide weekly, Vermont Guardian, with local investors. So, there was all of that. 

“Still, it didn’t feel right to me at first…” 

Buy Managing Chaos: Adventures in Alternative Media 

Interested in writing a review? Request copy at Mavmediavt@gmail.com

Other Excerpts

Bringing War Back Home

The Road to Change

Design Flaws: The Road from Delegation to Tyranny

The old constitutional framework has passed its expiration date. The alternatives range from a constitutional convention to radical devolution.

By Greg Guma

The US Constitution contained many brilliant ideas. But it outlined the new nation’s structure and system of laws almost 250 years ago, just eight after the Articles of Confederation — the first Constitution — were adopted. It’s time to ask serious questions about whether it still works.

The Articles were called a voluntary “league of friendship.” But the basic framework — largely independent states and a limited central government — was vulnerable to commercial schemes and corruption, conflicts between small and large states, and difficulties regulating new territories. State legislatures and communities often refused to support actions proposed by the Council of State, which managed general affairs. The national government couldn’t tax the states or exert authority over individuals. 

America soon faced a serious fiscal crisis. As George Washington put it, what the country needed was “a power that will pervade the whole nation.” At first, he and others claimed that the Articles simply could be amended. But that was just a pretext for what became a Constitutional Convention. And instead of adopting amendments, they abandoned the Articles, started from scratch, and ended up replacing state and local control with federal supremacy. 

Now we know that they failed to resolve many of the underlying problems.

The group of men who developed the plan principly gave Congress power over the new government. That was no surprise, since the Articles had created weak legislative and executive branches. The tyranny of the British Crown remained a vivid memory. So the framers searched for a middle way, something new between an ineffectual central government and a voracious dictatorship.

To that end, Article I of the new US Constitution stated clearly that law-making was in the hands of Congress, a power that couldn’t be abdicated or transferred to another branch of government. But nothing prohibited the delegation of power. Instead, the authority of Congress rested on three principles — separation of powers between three branches of government, the idea that delegated powers cannot themselves be delegated, and due process of law. The third of these implied that the regulatory powers of Congress couldn’t be given to private individuals. If that happened, people would be denied due process — exactly what is happening with Donald Trump and Elon Musk in charge.

In 2020, near the end of his first term, Trump made his view crystal clear: “When somebody’s president of the United States, the authority is total.”

For a long time after the constitutional system was created, the Supreme Court interpreted delegation liberally. For example, in an 1825 case, Wayman v. Southard, it said that Congress could delegate power to federal courts, but basically for the purpose of “filling in the details” of laws. Even in an 1892 case, Field v. Clark, which authorized the President to suspend a tariff, the chief executive wasn’t granted authority to make laws. In this and other Court cases, it reiterated the rule that Congress couldn’t delegate its basic functions. 

But as the nation became more complex and industrial, Congress was forced to turn over more power to administrators. Today they’re called bureaucrats, and sometimes the “deep state.” Members of Congress weren’t elected because of their technical skills, and couldn’t keep up with all the changes. Neither could the Courts, which could only act in response to a specific case or controversy. Over time, more functions were performed by presidents and an ever-expanding number of executive agencies. 

By the time Franklin Roosevelt’s “new deal” administration began, Congress was delegating power whenever it felt necessary — with little concern about Court disapproval. Of course, “unfettered” power (whatever that means) would be unconstitutional. But until 1935, the Supreme Court didn’t rule that any specific delegation was too much. 

Then, in Panama Refining v. Ryan, concerning the National Industrial Recovery Act, passed to end the Depression and restore prosperity, the Court ruled that Congressional delegation of power to the President was unconstitutional. Related cases reinforced restrictions on the executive branch.

After that, though, the Court upheld every delegation of power that came its way. 

Why the opposition to “New Deal” delegations? Some say that some Roosevelt era laws were sloppily or hastily written. More likely, several Justices were conservatives who used the Court to kill laws that were inconsistent with their minimal government beliefs. When the cases involved international matters, they almost always refused to restrict legislative delegation of power. 

The President’s power today couldn’t have been imagined by the authors of the Constitution. In fact, they weren’t very clear about what the executive branch should look like. They did fear executive tyranny and have faith in legislative bodies. But they had experienced a weak central government. Thus, Article II was supposed to give the President enough authority to deal effectively with national problems — without overwhelming the other two branches.

Unfortunately, the Article II language was vague. It said that the President should “faithfully execute” laws. But it made the executive commander-in chief of the military, and empowered the President to appoint numerous officials, grant pardons and reprieves, make treaties, and perform many duties connected with Congressional functions. What it did not do was define clear limits, which opened the door to a vast expansion of presidential power. It all depended on the character of the person who won the job. Whoever that was, however, the assumption was that they would share power with the other two branches. 

  Yet here we are, with a neutered Congress, hoping that courts can still impose some limits. The problem is that the Supreme Court has done more to expand than limit presidential power. In fact, it has granted powers to the President that aren’t conferred by laws or even mentioned in the Constitution. In a few cases, it has restrained executive power. But mostly it has rationalized presidential pretensions — especially during “emergencies.” At such times, the Court has been reluctant to interfere, except in cases of extreme abuse of authority. Many legal scholars say that is happening, but the Supreme Court recently ruled that the President is immune from prosecution for any official acts.

In Mississippi v. Johnson, a case emerging during a post-Civil War struggle between President Johnson and Congress about reconstruction, the Court clearly stated that the judiciary could not control the acts of the President. Johnson favored moderation while Radical Republicans wanted strict military control of rebel states. The Court’s decision was a compromise, sidestepping a potential constitutional crisis. 

Article II gave the President enormous influence over domestic affairs through the power to appoint public officials. But questions about removal were left unanswered. In 1926, the Supreme Court did weigh in, apparently giving the President unlimited power to remove government personnel — except for federal judges. Still, it provided no definition of who is a purely executive official, which allowed the Court to decide about removal on a case-by-case basis. 

The case, Myers v. United States, was controversial. Despite the main thrust, it indicated that executive power — even in an emergency — could still be subject to judicial control. Unless, of course, the President decided to defy the third branch of government. Recent statements by the President, Vice President, and various officials raise that prospect. 

For example, a US district court judge recently issued an injunction stopping Elon Musk’s “department of government efficiency” (Doge) from accessing the Treasury Department’s central payment system in search of alleged corruption and waste. In response, Vice President J.D. Vance, a Yale Law School grad, said that judges who issue rulings that attempt to block some of Donald Trump’s executive orders “aren’t allowed” to control the president’s “legitimate power.” A showdown in the Supreme Court is likely.

In foreign affairs, primarily the responsibility of the President and Department of State, some power is nevertheless supposed to be shared with Congress. Treaty ratification requires approval by two-thirds of the Senate. A simple majority is enough for appointment of diplomats. But the growth of presidential authority over war and foreign relations was inevitable. 

In connection with the Korean and Vietnam wars, Congress delegated much of its power, despite doubts that this was constitutional. And Presidents have used executive agreements rather than treaties to make international deals. These don’t require Senate approval, and the Supreme Court has said that they have the same legal effect.

Two centuries after the US constitutional system was created, it has gradually unraveled under the explosive force of the imperial presidency. The framers, though they could not predict the global dominance of the US, were certainly aware of the danger — a drift toward monarchy. Unfortunately, their 18th century solution no longer makes sense.

A different approach is needed again. Even if Trump’s monarchical power grab fails, Presidents will continue to seek more power until clear limits are imposed and public pressure reverses the long-term trend. In the end, the US may need another Constitutional Convention. Given the way things are going, any risks may turn out to be preferable to the inexorable drift toward tyranny.

But a Convention may not be practical at the moment. On the other hand, states did empower the federal government and ratify the current constitutional system. It’s time now for them and regional pacts to act, asserting their sovereignty by challenging or nullifying illegitimate presidential actions. What America needs is a radical devolution, a grassroots movement that restores the balance between federal, state and local power. 

As Thomas Jefferson explained in reaction to the repressive Sedition Act, federal power isn’t unlimited. When it goes too far, he argued, it need not be obeyed. States have the right to decide how to handle federal overreach. In fact, they are obligated, as Jefferson wrote, to stop the “progress of evil” and maintain their “authorities, rights and liberties.” 

Let the devolution begin.

Derailing the Engine of Liberty

The Trump crusade to end birthright citizenship isn’t a new idea. But it would create a permanent caste of aliens.

It’s a crystal clear idea: citizenship and equal protection under the law for everyone born or naturalized in the United States. Beyond that, the 14th Amendment to the US Constitution also protects the rights of life, liberty, and property of all citizens.

        The language is unequivocal. "All persons born or naturalized in the United States," it states, "and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

        And yet, like so many things these days, this could change.

        During his recent campaign for re-election Donald Trump repeated his past pledges about ending and revoking the citizenship status of children born in the United States to non-citizen parents. On Dec. 8, 2024, he told NBC News in a post-election interview that it was an official goal. “We’re going to have to get it changed. We’ll maybe have to go back to the people. But we have to end it.” He also claimed that he could use his presidential powers —  through the use of executive orders — to end birthright citizenship “if we can.”

        But can he? On Jan. 23, a federal district court judge said no, temporarily blocking Trump’s presidential order to limit birthright citizenship. Judge John Coughenour was responding to legal challenges from four states. It’s just the first step in what will no doubt be a multi-year, multi-state and federal legal battle. Coughenour blocked the Trump order for just 14 days, ending on February 6th. "I’ve been on the bench for over four decades," said the judge, a Reagan appointee. "I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."

        The day before that deadline, District Judge Deborah L. Boardman granted another temporary restraining order after a group of 16 pregnant women sued the Trump administration. “No court in the country has ever endorsed the president’s interpretation,” she said. “This court will not be the first.” The lawsuit is one of several from pregnant women, civil rights groups and state officials challenging the order.

        Yet it’s not unprecedented.  In fact, the idea has been pushed for decades by Republicans, many of them publicly saying that they want to abolish the citizenship guarantee of this 140-year-old Amendment.

        The official reasons? It’s a smorgasbord, to use imported slang. Some say that too many undocumented immigrants come to the US just to insure citizenship for their children. This fuels ideas like getting states to deny public education and other benefits to children of undocumented parents. The immigrant "threat” is often a pretext for attacks on basic rights and constitutional principles.

        Hatred and cruelty directed at immigrants is a persistent theme in US politics. In 1996, for example, when then-California Gov. Pete Wilson announced that undocumented pregnant women should be denied prenatal care, his underlying message was clear and brutal: If you’re “illegal,” get out of our country!

        “Citizenship in this country should not be bestowed on people who are the children of folks who come into this country illegally," argued Tom Tancredo, a Colorado Republican Congressman who led the charge long before the rise of Trump. As far back as 2006 at least 83 GOP co-sponsors pushed a bill that would have restricted automatic citizenship at birth to children of U.S. citizens and legal residents.

        More than 150 years ago, at the end of a two-year war, US and Mexican leaders signed the Treaty of Guadalupe Hidalgo. Many Latinos still feel that the treaty, accepted under pressure by a corrupt dictator, was an act of theft violating international law. Mexico surrendered half its territory — currently the Southwestern United States — and most of the Mexicans who stayed in the ceded region ultimately lost their land.

        In a sense, that war never ended. Throughout the remainder of the 19th century, US officials, working closely with white settlers and elites, used often-violent means to subdue Mexicans in the region. Once the region was “pacified,” border enforcement became a tool to regulate the flow of labor into the US. With the passage of the Immigration Act of 1924, the Border Patrol emerged as gatekeeper of a “revolving door,” sometimes processing immigrant labor, sometimes cracking down. The Bracero Program, which brought in Mexican agricultural laborers, was followed (and overlapped by) Operation Wetback, an INS-run military offensive against immigrant workers.

        Trump's order not only directs federal agencies to stop issuing citizenship documents to U.S.-born children of undocumented mothers; it applies to mothers in the country on temporary visas, if the father isn’t a citizen or permanent resident.

        According to a lawsuit filed by 18 states, there are about 150,000 children born each year to two parents who are non-citizens and lack legal status. California Attorney General Rob Bonta estimates the order would affect more than 20,000 newborns each year — 5% of the babies born in that state annually.

        In the past, the Supreme Court has described citizenship as the most basic of all rights, a "priceless possession." The opening clause of the 14th Amendment was designed principally to grant both national and state citizenship to the newly free Blacks. Under its terms, citizenship is acquired by either birth or naturalization; thus, any person born in the US is a citizen — regardless of parentage.

        But the current Supreme Court isn’t easy to predict. The justices would likely rule against the executive order, scholars claim — that is, if they took up the issue. But they could also decide not to rule or defer to lower court rulings.

        A primary goal of the 14th Amendment was to overrule the notorious Dred Scott decision, in which the Supreme Court held that neither Blacks who were "imported into this country and sold as slaves nor their descendants" could become citizens. During debate in 1866, Congress also considered the likelihood that it would apply to children of immigrants. Until the 14th Amendment, there was no constitutional definition of US citizenship. Ironically, the Republican Party pushed this and other Reconstruction measures through Congress after the Civil War.

        If children born in the US to illegal immigrants are citizens, some also charge that it's too easy for their parents to obtain visas and citizenship later. This idea first surfaced in the 1996 GOP platform. Recommended by a panel created by then House Speaker Newt Gingrich, a proposal called for "a constitutional amendment or constitutionally valid legislation declaring that children born in the United States of parents illegally present are not automatically citizens." Scholars warned then that another constitutionsl amendment would almost certainly be needed to make such a profound change.

        A month before she died, Barbara Jordan, former chairwoman of the US Commission on Immigration Reform, eloquently denounced the idea. "To deny birthright citizenship," she told Congress, "is to derail the engine of American liberty." Walter Dellinger, Acting Solicitor General at that time, added the following prediction: It would create "a permanent caste of aliens, generation after generation born in America but never to be among its citizens." 

        Be that as it may, another bad idea is back.