I recently saw a debate on the internet between those who believe in the idea of nullification and an individual that clearly does not. All of these individuals were from North Dakota. I found the debate interesting for many reasons, but chief among them was the fact that it was obvious the individual opposed to the idea doesn’t realize nullification is taking place now.
Earlier in North Dakota’s 65th Legislative Session, there was a bill proposed (SB 2043) that would have brought references regarding marriage in our Century Code into harmony with the Supreme Court’s decision in Obergefell v. Hodges. If you don’t recall, this was the case that ultimately resulted in the supposed legalization of same-sex marriage nation-wide.
SB 2043 died a quick and painless death. It didn’t even make it out of the Senate before it went down by a vote of 15-31. And rightfully so. A reading of the United States Constitution will show that there never has been any enumerated power for the federal government to have anything to do with the issue of marriage.
Had SB 2043 passed, our Century Code would have been out of harmony with the North Dakota State Constitution. Which, for all intents and purposes, should be the supreme document for the state of North Dakota on the issue of marriage. In essence, what the North Dakota Legislature did by defeating the bill was to nullify the decision of the United States Supreme Court.
Now, to be fair, I’m guessing that the legislature’s defeat of SB 2043 was more symbolic than anything else. I’m sure that marriage licenses are still being issued across the state for same-sex couples, though it is in violation of state law.
One of the most controversial issues of the 65th Legislative Session has been in regards to Senate Bill 2344. This was the legislative overhaul of what was originally "Measure 5", "Medical Marijuana", or the "North Dakota Compassionate Care Act"; which passed with nearly 65% of the vote back in November.
As expected, SB 2344 sailed through the Senate and House and has been sent on to Governor Burgum where it awaits his signature.
Aside from the controversy surrounding the legislature tinkering with the "will of the people" when it comes to Medical Marijuana in North Dakota, there is one striking fact at its core. That being that even after Governor Burgum signs SB 2344 into law, it will still be illegal at the federal level.
The federal government does not recognize a difference between Medical Marijuana and its recreational use. In fact, as a matter of classification, it is technically treated no differently than cocaine and heroine. In 2005 the Supreme Court ruled in Gonzales v. Raich that marijuana is not medicine and that the federal government can constitutionally prohibit its use for any purpose. An incorrect ruling for sure, but who’s to argue with the robe-clad gods?
What the North Dakota Senate and House have done – and what the Governor is about to do – is an outright act of nullification. Yes, like it or not, North Dakota believes in and is carrying out an act of defiance towards the federal government.
I wish all of this were as strong as it sounds though. In both of these cases of nullification, the state did not do what they did without the assurance that there wouldn’t be consequences from the federal government.
In the case of SB 2043, many legislators that opposed it felt that its defeat would not result in costly litigation to the state on the marriage issue.
When it comes to SB 2344, it was mentioned in floor debate that other states have already passed similar bills and that the federal government has said they will not be pursuing violations in regards to Medical Marijuana.
Yes, like it or not, North Dakota believes in and is carrying out an acts of defiance towards the federal government… well, kind of.