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.

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.

Courting Disaster : How the Supreme Court lost its way

From Bush v. Gore to Roe v. Wade… In the midst of legal battles over a different presidential election — and originally written for UPI in November, 2004 — this commentary looks at how interference by the United States Supreme Court squandered public trust.

By Greg Guma

In 2000, five justices of the United States Supreme Court stopped the recount in Florida after a mere 36 days and made George W. Bush president. Next time, it won't be so quick, easy or peaceful, and the Court won’t be trusted enough to help.

The national divide is much deeper now and the lawsuits will start before a single vote is cast. Take Florida, for instance. And I’m not talking about 2000. Things were just as bad four years later…

When Florida Secretary of State Glenda Hood told elections supervisors on Oct. 7, 2004 that they should reject incomplete voter registration forms, Democrats went to court. Hood's office had to fend off more than a half-dozen legal challenges, before and after the vote. The issues ranged from ballot initiatives and how to handle recounts on electronic machines to the counting of provisional ballots. Legal fights also loomed over early-voting sites and voter registration rules.

When Hood's office tried to exempt electronic machines from manual recount rules, a judge overruled her. The NAACP sued Florida's Volusia County elections supervisor, arguing that having only one early voting site in an area where minorities live disenfranchises blacks.

Meanwhile in Oregon, a criminal investigation looked into charges that voter registration forms were destroyed or discarded by a political consulting firm working for the Republican National Committee. The allegations involved a voter registration drive conducted by Sproul & Associates, a Phoenix-based consulting group hired by the Republican Party and headed by Nathan Sproul, former executive director of the Arizona Republican Committee.

Allegations that a Sproul associate destroyed or dumped Democratic registration forms were surfacing in several states.

Eric Russell, one of some 300 part-time Sproul group employees in Nevada, said he saw Democratic Party registrations destroyed. Retrieving shredded paperwork that included voter registration forms signed by Democrats, he took them to local election officials and confirmed that they had not been filed with the county, as required by law. In August, 2004 a Sproul employee in Charleston, W.Va., said she quit her job after being told to register only people who confirmed that they were supporting President Bush. 

Fortunately, you might say, Kerry conceded — instead of letting the legal challenges and growing public discontent devolve into a full-blown constitutional crisis.

Cut to 2008 and 2012: Those races weren’t close enough to credibly contest, or we certainly would have heard something by now. But most people agree that 2016 and 2020 were both tainted by some kind of interference, real and/or imagined. Culprits vary, of course, depending on your politics.

Next time, some voters who think they are safely registered could be in for a surprise on Election Day. The future culprits could be Russian and Iranian hackers, or a guy sitting on a lounge at a private club in Florida who weighs close to 300 pounds. “People are saying…”

One thing is sure: courts will take center stage again, leading to endless arguments about "activist judges," "equal protection," following "precedents," forensic audits, and "judicial restraint." Yet, the Supreme Court may hesitate to step in next time. One reason is that its legitimacy has been under a cloud since Bush v. Gore, and only got worse when it moved to overturn Roe v. Wade.

Just a few years ago the Court’s liberal wing was led by Ruth Bader Ginsberg and Stephen Breyer, both Bill Clinton appointees. In Bush v. Gore, they were joined in dissent by John Paul Stevens, a moderate appointed by Gerald Ford, and David H. Souter, appointed by Bush's father. Souter was also one third of the court's centrist troika, which included Reagan appointees Anthony Kennedy and Sandra Day O'Connor. 

Between 2008 and 2016 President Obama’s appointments of two women — Sonia Sotomayor and Elena Kagan — to replace  Souter and Stevens did not alter the basic ideological balance. But Trump’s appointment of three judges in four years (2017-2020) moved things radically right. Today John Roberts, the conservative Chief Justice, no longer controls his allies.

In 1992, the liberal majority revealed its power when upholding Roe v. Wade as a protected "liberty" under the Constitution. Admitting that political factors underlay their opinion, they made the argument that "changed circumstances may impose new obligations" and warned that overturning Roe would create tremendous political and social turmoil. 

On the other hand, Kennedy and O'Connor joined with the conservative triumvirate -- the combative Antonin Scalia, the equally partisan William Rehnquist, and their silent partner Clarence Thomas — in the fateful Dec. 12, 2000 ruling that made George W. Bush president. Twenty-two years later only Thomas remains. But the conservative replacements — Alito, picked by George W. Bush, and Trump’s troika — Gorsuch, Kavanaugh and Barrett —  are even more nakedly partisan.

In his dissent in Bush v. Gore, Stevens said the majority's choice played into the most cynical attitudes about judges, and would undermine public confidence. An understatement, it turns out. He also wrote, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.”

In 2024, we really may never know who actually won the presidential election. It could be due to cyber war, sour grapes or simple incompetence. But more "judicial activism" is the last thing people will want or accept when the next crisis comes. It’s a recipe for state’s rights and legal chaos.

Doubts about the independence and fairness of courts have been building for a while. The looming decision to essentially rescind the right to an abortion could be a fatal blow to the shaky legitimacy of this final institutional guardrail. Echoing Scalia's dissent when his colleagues declined to overturn Roe, interference — in his case, after the 2000 presidential election — "fanned into life an issue that has inflamed our national politics in general."