The annals of federal state relationships have been punctuated by several episodes of state efforts to nullify federal executive actions. In the past these efforts have been essentially extra legal (and/or illegal), and they have been basically unsuccessful. A contemporary nullification fight--one going on at this very moment--is different. It is taking place under the guise of federal law according to procedures set down in words by the national congress. The effort will, however, end the same, it will fail.

The current effort of state nullification of federal executive action will, on the other hand, be a successful one if it wins support of a single house of congress. The processes of this nullification campaign are convoluted, to say the least. Whichever way the matter is concluded after congressional action, the fight will continue in federal courts with a constitutional challenge of those processes.

Today's nullification battle is the fifth such battle in our nation's constitutional history. The four previous fights included the Kentucky and Virginia Resolutions decrying the unconstitutionality of the Alien and Sedition Act of 1798, South Carolina's attempt to repudiate enforcement of federal tariff policy in 1832, the collective effort of eleven southern states to block federal enforcement of laws during the Civil War Era of 1861-1865, and the efforts of many of the same states to interpose their authority on behalf of their citizens against implementation of federal policies mandating racial integration of schools in the 1950s and 1960s.

The Kentucky and Virginia resolutions were written by Thomas Jefferson and James Madison respectively. They declared that the constitution was merely a compact with the states and did not bind the states to federal law, which violated personal liberties. The states could rule on the constitutionality of federal acts. Beyond being precedents for other battles, the resolutions had little effect except to stimulate a political issue for the 1800 election in which Jefferson won the White House. His new anti-Federalist party won control of congress and repealed the obnoxious federal act. Other actions of the Jeffersonian presidency could be interpreted as being quite contrary to the notions of strict construction he spelled out in the resolutions (i.e., the Louisiana Purchase and the trial of Aaron Burr).

The government of South Carolina was convinced that the 1828 and 1832 national tariff acts which called for high protective tariffs on manufactured goods were designed to assist northern industry to the strong detriment of their own agricultural interests. The acts were also seen as an attack upon the economic viability of the institution of slavery. Leaders in South Carolina protested the federal efforts by calling a state convention, which passed resolutions indicating that the tariffs would not be imposed at ports of entry into the state. The strongly worded resolutions indicated the state would use force to support its cause.

President Andrew Jackson found that the state actions precluded any opportunity for compromise. Although he was a states' rights advocate and he was born in South Carolina, Jackson responded in kind. He mobilized troops and he ordered them to South Carolina if the state resisted implementation of the tariff provisions. Congress supported his moves. South Carolina backed down. In the process, its leading politician, John C. Calhoun, resigned his position as Vice President of the United States. In 1833, the Great Compromiser, Henry Clay, maneuvered a bill through Congress, which made the episode less onerous for South Carolina. The state repealed its nullification proclamation. The 1833 tariff act gradually rolled back tariff rates to pre-1828 schedules.

The results of the next nullification episode were not as peaceful. In 1861 South Carolina nullified the constitution and all federal law enforcement in its borders. South Carolina was followed by ten other states, and the Civil War ensued. This failed case study in nullification is amply recorded in tens of thousands of books.

Post Civil War compromises on the enforcement of certain federal provisions (constitutional and statutory) in the states formerly in rebellion allowed the states to impose illegal (in effect, if not in word) policies of racial segregation in public facilities. The United States Supreme Court ruled the state policies mandating public separation of races unconstitutional in 1954. The next year the Court issued rulings regarding the immediate implementation of national policies for integration.

The governors of the states with policies of segregation began a pattern of resistance to the decisions. Supported by their state legislatures, governors such as Ross Barnett of Mississippi, Orval Faubus of Arkansas, and George Wallace of Alabama orchestrated the policy of interposition. The governors soon found themselves"standing in the school house door" blocking federal enforcement agents from accompanying African American students into previously all-white schools. At the school sites the governors would be flanked by the commanders of their state national guard along with troops of the guard. The guard would represent a show of force against federal action. But inevitably, it was but a show. As if by prearrangement, in each case the president would proclaim that the state National Guard was called into federal service and placed under command of the U.S. Army. The"Army" would in turn leave the governor's side and support the actions of the federal agents. Interposition and other legalistic efforts to resist policies of integration did slow down implementation, but national policy prevailed.

The fifth nullification episode is the first one to take place outside of the South. (An 1814 Hartford Convention advocated nullification, but this was a meeting of Federalist Party politicians not government officials). The current episode was prompted, the better word would be" created," by the Nuclear Waste Policy Act of 1982. The Act provided that the federal government (Department of Energy) would study sites for storing nuclear waste materials generated by power plants (and other facilities) in 42 states. After the study was completed, the Secretary of Energy would recommend one site for storing nuclear waste underground.

The president would then accept or reject the site. If the president agreed with the selection, he would inform the state where the site was located, that he had made his selection. The governor of the state would then have 60 days in which to veto the action of the president. If there were no veto, action on developing the site would begin. However, if, as expected, the governor vetoed the president's action, the veto could be overridden only if both houses of congress voted to over ride (by majority vote) the veto within ninety days. If but one house supported the governor, the governor's veto of the president's action would be confirmed. The process of selecting a nuclear waste site would have to begin anew.

The 1982 Act also indicated that the Department of Energy would start its study by looking at sites in Texas, Washington State, and Nevada. In 1987, another act of congress limited the study of potential sites to the Yucca Mountain site in Nevada. On February 14, 2002, after fifteen years of study costing the federal government over 12 billion dollars, Secretary of Energy Spencer Abraham recommended the Yucca Mountain site for storage of nuclear waste. On February 15, 2002, President George W. Bush selected the Yucca Mountain site. As expected, on April 9, 2002, Nevada Governor Kenny Guinn vetoed the action of the president. This is the first time in American History that a governor has"legally" (I emphasize the quotation marks) vetoed the action of a president. Congress has until July 9, 2002, to sustain or override the veto.

The politics are quite simple. Nevada has four votes in congress, two in the House, two in the Senate. The forty plus states with nuclear waste within their borders (now temporarily stored above ground at the generating sites), have over 400 votes in the House and over 80 votes in the Senate. If they want to keep the waste at the temporary storage areas which are quickly filling up in many cases, they may vote to sustain Governor Guinn's veto. If they fear transporting the waste through their states toward Nevada more than they fear having the waste permanently in their midst, they may also sustain the veto. However, by sustaining the veto they are introducing the possibility of having another waste site, perhaps a site in their own state.

If they vote to override the veto, they are assured that most of the waste will be moved to Nevada over a period of decades.

The congressional votes are being lobbied and counted. The nuclear energy generating plants and the power companies want the waste moved to Nevada and they have lobbying funds to support overriding Governor Guinn's veto. The state of Nevada has authorized the expenditure of three million dollars in its campaign to win congressional support for the veto.

Ironically, at the very moment the state of Nevada is waging its costly uphill battle for a nullification victory, the state's Department of Motor Vehicles (DMV) is reconfirming the state's love of everything nuclear. (See March 25 HNN). On April 12, 2002, the DMV announced that the state would be raising money by selling automobile license plates honoring the history of the Nevada atomic bomb testing site at Yucca Flats (adjacent to Yucca Mountain). The new state license plates actually show an atmospheric atomic bomb test. The plate has a mushroom cloud rising through the plate number and encompassing the word"Nevada." The cloud is flanked by a nuclear logo and the formula e=mc2. There are estimates that 15,000 Americans died as a result of the atmospheric tests. Nevada likes to talk about the danger of radiation. But the state just can't quite resist celebrating its nuclear past and making a buck off it in the process. I expect the license plates will be issued in time for Senators Reid and Ensign to sport them on their cars in Washington, D.C., as they drive about seeking votes to support Governor Guinn's veto.

The nullification fight will not end in July 2002. The veto arrangement with a governor's action along with support of but one house of congress reversing the executive action of a president was set into the law in 1982. In 1983, the United States Supreme Court ruled in Immigration and Naturalization Service v. Chadha that legislative vetoes of executive branch actions constituted a clear violation of constitutional provisions for the passage of legislation. Congress is supposed to pass legislation and when the president signs it, they are done with their role in the process.

Any reasonable reading of Chadha (a 7-2 Supreme Court ruling) would lead to a conclusion that the action by the governor of Nevada and the override actions by Congress are contrary to the Constitution. So, in final analysis, the matter may be settled in the courts.

Nevada leaders have vowed to fight to the end. If the governor's veto is overridden, Nevada will have a case, but it will be a difficult one. The state will be burdened with showing that the unconstitutional veto process in the 1982 Act is so onerous that it voids the entire act, and hence voids the selection of Yucca Mountain for waste storage.

However, in the unlikely event that the governor's veto is sustained, the president will have the easier task of showing only that the provision for the governor's veto and the congressional override is unconstitutional, and that the selection of Nevada for the waste site was validated at the moment the president made the selection.

Either way, the notion of nullification would be negated by a court ruling. And for this Nevadan, that is just as well. What with"quicky" divorces, brothels, grocery store slot machines, Howard Hughes, Meyer Lansky, and Bugsy Siegel, we have enough of a legacy to live with. It would be simply awful if we had to be joined together in the legacy of John C. Calhoun, Ross Barnett, and George Wallace as well. But then, being on the Jefferson and Madison team wouldn't be all that bad.