Bending an AP Reporter’s Frame on Nullification

Read Scott Horton's new book Fool's Errand: Time to End the War in Afghanistan

Yesterday, I talked to an AP reporter about a Texas bill that would set the stage to block some federal actions, and I bent her “frame” in the process.

Reporters write their stories within certain frames. In journalistic terms, a frame is made up of predetermined facts and assumptions that surround the story.

Texas House Bill 2338 would create a mechanism to review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. The proposed law would establish a standing committee to review federal actions and determine their constitutionality.

State and local entities would then be prohibited from enforcing any federal laws, agency rules and regulations, executive orders, federal court decisions, or treaties deemed unconstitutional through the process. The proposed law would also ban expenditure of state funds to enforce such federal actions.

The first question the reporter asked was if there are similar bills pending in other states. I could tell she was shocked when I explained that bills in California and New York to create “sanctuary states” for undocumented immigrants rest on the exact same legal principle as HB2338.

The only substantive difference between the sanctuary state bills and the proposed Texas law is that New York and California are a bit ahead of the curve. They hope to apply anti-commandeering principles immediately to specific policy (immigration) whereas the Texas bill would simply set up a process to take similar actions on yet to be determined issues.

The reporter obviously didn’t plan to talk about state and local refusal to enforce immigration. In fact, she wanted to talk about gay marriage. In a conservative state like Texas, gay marriage could become an issue, I suppose. But it was clear that it had never occurred to this reporter that the same legal principle supports some important progressive movements today – not just immigration, but also marijuana legalization.

The reporter was also unfamiliar with the anti-commandeering doctrine. To understand HB2338, it’s imperative to have some understanding of the legal principle that underlies it. In a nutshell, the Supreme Court has held since 1842 that the federal government cannot force states or their political subdivisions to enforce federal law or use their resources to implement federal acts. HB2338 rests on a rock solid legal basis.

She didn’t say so, but I get the impression, based on her line of questioning, that the reporter considers the Texas bill radical, unconstitutional and perhaps dangerous. She kept talking about nullification.

That opened the door to explain to her the most powerful historical case of nullification – northern resistance to the Fugitive Slave Act in the 1850s.

“Every one of those people we call heroes for working on the Underground Railroad were engaging in nullification.”

I don’t hold out much hope that the reporter will write a positive article about HB2338. She seemed pretty wrapped up in her own frame. But hopefully I gave her enough to at least provide some balance and bend that frame a bit. I know I at least shocked her into having to consider the possibility of “progressive nullification.”

Republished with permission from the Tenth Amendment Center.

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Read Scott Horton's new book Fool's Errand: Time to End the War in Afghanistan