Litigation

States Eye ?Nullification? of Federal Court Decisions

By National Center for State Courts

State legislative opposition to federal judicial decisions is nothing new. This year, however, several states have seen resolutions introduced that hint or outright consider the “nullification” of federal court decisions that are opposed by the legislature, the U.S. Constitution, or both.

The first such resolution introduced was New Hampshire’s HCR 6, which resolved that, under the Ninth and Tenth Amendments, “[any] Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America.”

It further contended “that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals” due to the First Amendment. Georgia’s HR 470 and SR 327, South Dakota’s HCR 1013, and Texas’ HCR 66 copied the New Hampshire resolution almost exactly, while Texas’s HCR 76 limited the “nullification” to the judicial order itself and not “the Constitution for the United States of America”.

In a similar vein, Georgia’s HB 1 declares “Roe v. Wade is ‘no law,’ is a nullity, and carries no legal effect in Georgia” due the Tenth Amendment, and warns ominously that “Compliance with, and continuation of, a fiat determination of the Supreme Court from nearly 40 years ago will cause the basis of this Union, and eventually the Union itself, to fall?”

After defining abortion as criminal prenatal murder, the bill also finds that “No portion of this Act may be found to be unconstitutional by the federal courts as they lack the subject matter jurisdiction to instruct this state how or whether to prosecute certain crimes.”

-From the February 26 issue of Gavel to Gavel. To read it, click here. To see earlier editions, click here. To see a new searchable database for all Gavel to Gavel legislation, click here.

Full post as published by The Gavel on March 10, 2009 (boomark / email).