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The Great Nullification Crisis of 2017

July 15, 2013

For most Americans now living, those long-ago events were as unthinkable as they were forgotten. In Little Rock, Arkansas (1957), Oxford, Mississippi (1962), and Tuscaloosa, Alabama (1963), Presidents Eisenhower and Kennedy dispatched federal troops to enforce the law of the land in the face of local segregationist officials proclaiming "states' rights" as their rallying cry.
And yet, little more than two generations later, a new, even more shocking nullification crisis exploded across the United States. In places like Burlington, Vermont, and Boulder, Colorado, in Concord, Massachusetts, and Concord, California, and in Portland, Oregon, and Pittsburgh, Pennsylvania, American troops were deployed to stamp out the nascent rebellion of American citizens and renegade state politicians protesting Washington's violations of their most basic notions of reproductive rights, personal privacy and tax fairness. This is the story of the failed civil uprising and taxpayer revolt that constituted the Great Nullification Crisis of 2017.
Brief but bloody, the simmering federal-state conflict that boiled over that hot summer began with the previous fall's election of Republican President Ted Cruz and Vice President Susana Martinez. But its real roots lay in 18 states' passage of the Vote Integrity for Legitimate Elections (VILE) Act by the spring of 2016. As the New York Times described the legislation which swept Republican (and mostly southern) state houses between 2013 and 2015:

Made possible by the Roberts' Court 2013 Shelby County ruling, VILE bills have rapidly proliferated in the states formerly subject to Department of Justice pre-clearance. The most draconian voting legislation since the era of Jim Crow, VILE requires voters to present photo identification cards, cards which can often only be obtained in limited locations statewide and with the presentation of a driver's license or birth certificate.
Other provisions of the Vote Integrity for Legitimate Elections Acts limit early voting and ban weekend voting altogether. Absentee ballots must be delivered in person by each voter him or herself. And while outlawing same-day registration, VILE also imposes a $10,000 fine and jail time on civic groups and partisan organizations for each voter registered in error.
Experts like Rosanne Parks of the League of Women Voters worry that voter registration and turnout "will plummet" as a result, especially among minorities and the poor. For them, Parks warned, "Legal remedies in federal courts will come too late. The damage will already be done."

Which is exactly what happened. Despite losing the popular vote by over 1.5 million ballots to Democrats Martin O'Malley and Brian Schweitzer, the Republican ticket of freshman Texas Sen. Ted Cruz and two-term New Mexico Gov. Susana Martinez captured the Electoral College by a 291 to 247 margin. Gaining 11 points among Hispanics compared to Mitt Romney's dismal 2012 performance certainly helped. But it was the dramatically reduced turnout by African-American, Latino and lower income voters that enabled Cruz to carry Ohio, Florida, Virginia, New Mexico and Pennsylvania. An estimated two million Americans were kept from the polls in those states alone. (Democrats called their absence "vote suppression"; Republicans called it "disinterest.")
In the spring of 2017, the newly inaugurated President Cruz as promised unleashed a tidal wave of legislation on guns, abortion, health care and tax reform. While each sailed through the still-solid Republican majority in the House of Representatives, it was Senate Majority Leader Mitch McConnell who made their passage into law possible. There were no Democratic filibusters for the simple reason that they were now virtually impossible . Reversing course on his record-setting use of the filibuster during President Obama's tenure, McConnell once again pushed for an "up-or-down vote" for judicial appointees--and everything else. As an aide explained his return to the "nuclear option" he praised in 2005 and scorned in 2013:

''Senator McConnell always has and continues to fully support the use of what has become known as the 'constitutional' option in order to restore the norms and traditions of the Senate with respect to judicial nominations. This is just the next logical step."

That dramatic change to Senate rules done, McConnell and his number two John Cornyn (R-TX) helped President Cruz pass four bills that in the spring and summer of 2017 turned the United States upside-down.
The first was the Remove Abortion Protections for Everybody (RAPE) Act.
While Roe v. Wade was still (barely) the law of the land, draconian state restrictions on abortion access effectively erased Sandra Day O'Connor's "undue burden" standard. Mandatory ultrasound procedures, bans on telemedicine and online access to Plan B, strict requirements for clinic facilities and hospital transfer agreements, and free speech limits on doctors made abortion services a thing of the past in most GOP-controlled states. (These were upheld by the new Roberts Court, which early in 2017 replaced Ruth Bader-Ginsburg with former Alabama Chief Judge Roy Moore.)
Then that May, Congress passed and President Cruz signed the RAPE Act, legislation designed, as one GOP sponsor put it, to "shut that whole thing down." RAPE not only made many of the same state limits federal law, but made their violation by doctors and patients alike a felony. In one of its more controversial provisions, the RAPE Act created a national miscarriage registry requiring notarized statements signed by both women and their physicians. Even more chilling, as the Washington Post described, was the mandatory public shaming the law required:

The Remove Abortion Protections for Everybody Act also establishes a public database of doctors providing and women receiving abortion services. Based on a 2012 Tennessee proposal, RAPE requires both public and private health care providers to monthly turn over to the Department of Health and Human Services physician and patient names, addresses and procedure dates for each abortion performed. Akin to the national sex offender registry, what supporters call the Baby Killer List can be freely searched online by anyone.

That was too much for Oregon and a host of other Democratic states. In Salem, Gov. Peter Ryan signed the first "Hands Off" law, which instructed public hospitals and clinics to refuse to cooperate with the HHS data gathering. Calling the RAPE Act an exception to HIPAA "wide enough to drive a Mack truck through," Ryan denounced the harsh federal law as "a tyrannical abrogation of the privacy protections enshrined in the Oregon Constitution."
Washington, California, Hawaii, New York and Minnesota along with all of the New England followed suit with their own Hands Off laws. (At a Burlington, Vermont city council meeting, some speakers even called for secession.) But when the Oregon Health Sciences University (OHSU) refused to comply with Attorney General Jay Sekulow's July 31 ultimatum, President Cruz nationalized the Oregon National Guard and surrounded the campus with federal troops. After three days of clashes with thousands of protesters in Portland left 11 dead (including a mother of three), Gov. Ryan relented.
The Supreme Court would eventually declare the state nullification laws in violation of the Supremacy Clause of the United States Constitution. As Justice Antonin Scalia explained:

"If there were any constitutional issues resolved by the Civil War, it is that states have no right to secede or nullify federal laws."

But even before the Portland Eleven could be buried, a second wave of state nullification laws swept much of the Northeast and West. This time, the new uproar over states' rights was about guns.
On March 29, 2017, President Ted Cruz signed the Firearms for Individual Responsibility Enhancement (FIRE) Act. Proclaiming "the Second Amendment can't defend itself," Cruz inked the bill making state concealed-carry laws reciprocal nationwide. But that was far from all. Inspired by a 2013 law enacted in Nelson, Georgia, FIRE required all American homeowners to purchase a gun or pay a $250 tax to the IRS. (That provision, which borrowed language from John Roberts' 2012 majority opinion in the Obamacare case, would later help what opponents called "Cruz Control" withstand a Supreme Court challenge.)
Calling a federal gun registry a "clear threat to Americans' Second Amendment freedoms," the FIRE ACT instead created a public database of non-owners produced from individual tax returns. To ensure compliance and prevent tax-cheating, gun-free households from falsely claiming to be packing heat, the new law added 16,000 IRS agents tasked with enforcement. In June, the IRS began using the membership list of the National Rifle Association to identify potential cheaters, using a taxpayer's absence to secure a warrant for an unannounced search. (That's why these quickly became known as "NRAids.")
The response in Blue America was fast and furious. Democratic governors denounced the "jack-booted thugs" and "Gestapo-like tactics" of the Internal Revenue Service. (In Maine, Paul LePage's Democratic successor called the IRS "the new Gestapo.") County sheriffs in Burlington, Vermont and Boulder, Colorado announced they would not cooperate with federal officials in the enforcement of the FIRE Act. When Vermont state troopers successfully prevented IRS personnel from entering a home in a small town of Charleston in Orleans County, the Charleston Compact was born.
The Charleston Compact adopted by 13 largely Democratic states didn't just authorize noncompliance by state and local officials. Borrowing a page from gun rights legislators in Mississippi, Missouri and other mostly southern states, the new bills made it a crime for a federal agent to try and enforce the law in their states. Quickly adopted by the Governor and legislature in Boston, the "Massachusetts Balance of Powers Act" read in part:

"If the Massachusetts State Legislature votes by simple majority to neutralize any federal statute, mandate or executive order on the grounds of its lack of proper constitutionality, then the state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order."

With quarterly estimated tax payments due for some Americans, events quickly came to a head in the summer of 2017. In Concord, Massachusetts, police arrested two IRS agents attempting to search the home of a suspected non-gun owner. Days later, California Highway Patrol officers surrounded a house in the San Francisco Bay Area city of Concord to prevent the Internal Revenue Service's "gun-police" from taking its owner into custody for interrogation. When Governor Gavin Newsome refused to order his troopers to stand down, President Cruz deployed Marines from Camp Pendleton. In the confusing melee which ensued, one CHP officer was killed and two wounded. (Compounding the tragedy, it turned out that the ironically-named homeowner Wayne Lapierre in fact had a Bushmaster 223, just as he claimed on his second quarter tax return.)
Once again, the specter of further bloodshed and the finality of a Supreme Court ruling quelled the brewing insurrection over nullification and states' rights. But the revolt of blue state taxpayers was far from over.
The trouble began on April 15, when President Cruz signed the Ending Government Dependency Tax Reform Act. The law eliminated the federal tax break for state and local taxes which cost Uncle Sam $54 billion a year by 2014. As the Wall Street Journal crowed, what the National Review called "the Blue Tax" would hit Democratic-controlled states the hardest:

After California, the highest average itemized deductions--all over $28,000--were claimed by taxpayers in New York, the District of Columbia, Connecticut, New Jersey, Maryland and Massachusetts. All have high state, local and property taxes, which may be deducted from income on federal returns.

That was bad enough for Blue Staters, but things quickly got much worse. In May, 2017, Congressional Republicans passed major health care and education reforms. New block grants put the states completely in charge of their Medicaid programs, programs largely funded by blue state taxpayers. More ominous still, the School Choice Act withheld all federal education funding from any state that did not provide school vouchers and home school tax credits to its residents. With tens of billions of dollars at stake, California and New York led a lawsuit brought by 21 largely Democratic states.
To bolster their case, their filings centered on the doctrine of "equal sovereignty" of the states introduced by Chief Justice John Roberts in his opinion overturning sections 4 and 5 of the Voting Rights Act. But while the Court in 2019 ruled that states could not be punished for opting out of federally mandated school voucher programs, Roberts discovered that he now had no issue with "different states being treated differently" when it came to federal tax payments and Medicaid funding. But by then, the tinderbox had already exploded.
Denouncing "red state socialism" and holding signs with slogans like "No Taxation without Representation" and "We Pay Their Way," tens of thousands of blue staters descended on Washington, DC and state capitals across the country. Wearing Revolutionary War-era blue coats, members of BARF (Blue-Staters Against Red-State Freeloading) held marches, protests and sit-ins. During the August 2017 Congressional recess, they disrupted town hall meetings using techniques originally suggested by the right-wing Astro-turf organization, FreedomWorks.
But it was social media that transformed a grassroots movement into a genuine taxpayer revolt. On Facebook, Twitter and the newly popular Snoutfeed, online and smartphone applications letting blue state residents calculate "red state subsidies" and individual "blue state refunds" took off like wildfire. That September, 4.9 million Americans signed petitions pledging to withhold the portion of their incomes taxes they deemed destined for Republican states.
That was more than the Cruz administration would tolerate. Accusing BARF of getting financial support from places like North Korea and Saudi Arabia, President Cruz had its leaders arrested on charges of treason, terrorism or espionage. In his Oct. 7, 2017 national televised address to the nation, Cruz warned that any taxpayer who did not pay his full tax bill to the United States would be prosecuted to the fullest extent of the law. Two weeks later, he signed a bill banning the use or dissemination of the Blue State Refund (BSR) apps. (The same bill also eliminated the estate and capital gains taxes.) Using the Section 215 "business records" provision of the Patriot Act, Cruz instructed the NSA to identify supposed "homegrown terrorists intent on undermining the full faith and credit of the United States of America."
By mid-2018, it was all over but the shouting. The combination of Supreme Court edicts and federal military forces put an end to what many Republicans derisively called the "Blue State Tenther Movement." The taxpayer rebellion fizzled, too, as President Cruz made good on his threat to put scofflaws in jail. All told, the Great Nullification Crisis of 2017 didn't have either the drama or the body count of the segregationists' last throes in the early 1960s. And as history will record, it wasn't any more successful.

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Of course, the hypothetical picture painted above would never come to pass. Its impossibility doesn't arise either from the new-found moderation of Republicans who would recoil at the prospect of enacting such draconian and explosive policies or a Supreme Court unwilling to rubber stamp them. Instead, it is the Democratic belief in the supremacy of the United States Constitution and scorn for discredited and dishonorable notions of states' rights and nullification that make the tall tale above an unbelievable fiction.
Note: This piece first appeared at Dailykos.


About

Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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