Could Tennessee legally pass a law letting the state nullify federal laws, executive orders, or court decisions it considers unconstitutional?

Subject

Whether Tennessee Senate Bill 1092 (113th General Assembly, 1st Session, 2023), which would establish a process for declaring federal laws, agency rules, executive orders, court decisions, and treaties "ultra vires" and unenforceable in Tennessee, is constitutional.

Plain-English summary

Senator Richard Briggs asked the AG to evaluate Senate Bill 1092, the "Restoring State Sovereignty Through Nullification Act." The bill would declare any federal action outside the enumerated powers of the U.S. Constitution void, set up a state-level review process to identify "unconstitutional federal action," and let the governor, the legislature, state courts, a coalition of counties and municipalities, or a group of registered voters initiate a nullification action. Once a federal action was nullified, it would be "ultra vires" and not recognized as valid in Tennessee.

The AG concluded the bill is constitutionally infirm on two independent grounds.

First, separation of powers. Article II, §§ 1 and 2 of the Tennessee Constitution allocate power among legislative, executive, and judicial branches. The judicial branch alone has authority to determine the constitutionality of laws. Cases like City of Memphis v. Shelby County Election Commission (Tenn. 2004) and Richardson v. Tennessee Bd. of Dentistry (1975) hold that the legislature cannot vest itself, nor the governor, with the power to declare federal action unconstitutional. The bill's grant of nullification authority to the governor and legislature directly violates that allocation.

Second, the Supremacy Clause. Under U.S. Const. art. VI, cl. 2, federal law is the supreme law of the land. State courts have only limited authority to declare federal action unconstitutional, and that authority cannot be expanded by state legislation. Cooper v. Aaron (1958) is the controlling case: after Brown v. Board of Education, Arkansas amended its constitution to require state resistance to desegregation. The Supreme Court held that Brown was supreme law and that state nullification was foreclosed by Article VI. Andrew Jackson made the same point in his 1832 Proclamation responding to South Carolina's nullification of federal tariffs: "the power to annul a law of the United States, assumed by one State, [is] incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution."

The opinion notes a narrow exception: when a state has not been ousted of concurrent jurisdiction, a state court could plausibly nullify a particular federal action. But that limited authority cannot be expanded by state legislation, and it does not approach what Senate Bill 1092 contemplates.

What this means for you

If you are a Tennessee state legislator

The opinion concludes Senate Bill 1092 is constitutionally infirm on two independent grounds. Under Tennessee's separation-of-powers doctrine (Tenn. Const. art. II, §§ 1, 2), the General Assembly and the governor cannot be vested with authority to declare federal action unconstitutional, because determining the constitutionality of a law is a function reserved to the judicial branch. And under the Supremacy Clause, state legislation cannot expand the limited authority state courts already have to nullify federal action.

If you are an attorney evaluating the opinion's reach

The opinion addresses the constitutionality of Senate Bill 1092 as drafted. It holds the bill infirm because it vests nullification authority in the governor and legislature (separation of powers) and because it attempts to enlarge state courts' authority over federal action (Supremacy Clause). The opinion does not address how state officials should respond to specific federal actions or evaluate any alternative legislation.

If you are a state court judge

The opinion describes the existing authority rather than expanding it: state courts have inherent authority to adjudicate federal claims only absent an affirmative act ousting that jurisdiction, are powerless to nullify federal action where ousted, cannot enjoin federal proceedings (Phelps), and are bound by U.S. Supreme Court constitutional interpretations (McNabb). The opinion concludes that limited authority cannot be reclaimed or enhanced by state legislation.

If you are a constitutional law student or scholar

The opinion restates both horizontal separation of powers under the Tennessee Constitution (the judicial branch alone determines constitutionality, per Richardson, City of Memphis v. Shelby County Election Comm'n, and Caudill v. Foley) and the federal Supremacy Clause analysis (Marbury, Cooper v. Aaron, Tafflin, McCray, Gibbons v. Ogden), anchored by Andrew Jackson's 1832 Proclamation rejecting South Carolina's nullification.

Common questions

Q: Did the Tennessee AG say the nullification bill was constitutional?
A: No. The opinion concludes Senate Bill 1092 is constitutionally infirm under both the Tennessee Constitution and the federal Constitution.

Q: Why can't Tennessee's legislature or governor declare a federal law void?
A: Because under Tenn. Const. art. II, §§ 1 and 2, determining the constitutionality of a law is a function reserved to the judicial branch. Vesting that power in the legislature or governor violates Tennessee's separation-of-powers doctrine.

Q: Can state courts nullify federal action?
A: Only within the narrow limits the Supremacy Clause allows. State courts have inherent authority to adjudicate federal claims unless ousted of jurisdiction, cannot enjoin federal proceedings (Phelps), and are bound by U.S. Supreme Court interpretations (McNabb). The opinion holds state legislation cannot enlarge that limited authority.

Q: What was the Cooper v. Aaron situation the opinion relies on?
A: After Brown v. Board of Education ordered desegregation, Arkansas amended its constitution to require the legislature to resist the order. In Cooper, the U.S. Supreme Court held that Brown was the supreme law of the land and that the Supremacy Clause bound the states regardless of any contrary state law.

Background and statutory framework

Senate Bill 1092 (113th General Assembly, 1st Session, 2023) defined "federal action" broadly to include federal law, federal agency rules and standards, executive orders, federal court decisions, and treaties. It defined "unconstitutional federal action" as federal action enacted without authority "specifically delegated to the federal government by the people and the states through the United States Constitution." It established a multi-actor process for declaring such actions ultra vires.

The Tennessee Constitution allocates power among three branches in Article II. Section 1 names the legislative, executive, and judicial branches. Section 2 prohibits any branch from exercising powers allocated to another. The Tennessee Supreme Court has held repeatedly that the judicial branch alone has authority to determine the constitutionality of laws (City of Memphis v. Shelby Cnty. Election Comm'n; Richardson v. Tenn. Bd. of Dentistry; Caudill v. Foley).

The U.S. Constitution's Supremacy Clause (art. VI, cl. 2) makes federal law supreme. The federal judiciary is the "supreme expositor" of the Constitution (Marbury v. Madison; Cooper v. Aaron). State courts adjudicate federal claims under inherent concurrent jurisdiction unless ousted (Tafflin v. Levitt; Bombolis), but cannot enjoin federal proceedings (Phelps) and are bound by U.S. Supreme Court constitutional interpretations (McNabb). Andrew Jackson's 1832 Proclamation responding to South Carolina's nullification of tariff law remains a foundational political-historical statement of the same principle.

The opinion notes (footnote 1) that within the narrow scope where concurrent jurisdiction exists, a state court could plausibly find a particular federal action improper (Roe v. Replogle, Bosh v. Fahey, Thomas v. NC DHR are state-court examples).

Citations

Constitutional and statutory provisions:

• U.S. Const. art. VI, cls. 2, 3
• Tenn. Const. art. II, §§ 1, 2
• Senate Bill 1092, 113th Tenn. Gen. Assem., 1st Sess. (2023)

Cases:

• Marbury v. Madison, 5 U.S. 137 (1803)
• Gibbons v. Ogden, 22 U.S. 1 (1824)
• McCray v. United States, 195 U.S. 27 (1904)
• Brown v. Board of Education, 347 U.S. 483 (1954)
• Cooper v. Aaron, 358 U.S. 1 (1958)
• Tafflin v. Levitt, 493 U.S. 455 (1990); Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916); Phelps v. Mutual Reserve Fund Life Ass'n, 112 F. 453 (6th Cir. 1901); McNabb v. Tennessean Newspapers, 400 S.W.2d 871 (Tenn. App. 1965)
• Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1975); Underwood v. State, 529 S.W.2d 45 (Tenn. 1975); City of Memphis v. Shelby Cnty. Election Comm'n, 146 S.W.3d 531 (Tenn. 2004); Caudill v. Foley, 21 S.W.3d 203 (Tenn. Ct. App. 1999); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008); Pendleton v. Mills, 73 S.W.3d 115 (Tenn. Ct. App. 2001)

Historical:

• Andrew Jackson, Proclamation No. 26, Respecting the Nullifying Laws of South Carolina (Dec. 10, 1832)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-005.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 6, 2024
Opinion No. 24-005

Constitutionality of Tennessee Legislation Providing for the Nullification of "Unconstitutional Federal Action"

Question

Is Senate Bill 1092 of the 113th Tennessee General Assembly, 1st Session (2023) constitutional?

Opinion

Senate Bill 1092 is constitutionally infirm. The separation-of-powers doctrine set forth in article II, sections 1 and 2 of the Tennessee Constitution prevents the General Assembly and the governor from nullifying "unconstitutional federal action." And the Supremacy Clause of the United States Constitution prohibits state legislation aimed at increasing the limited authority of state courts to nullify unconstitutional federal action.

ANALYSIS

As currently proposed, Senate Bill 1092 provides that "any federal action outside the enumerated powers set forth in the United States Constitution [is] in violation of the peace and safety of the people of this state, and therefore, said acts are declared void and must be resisted." SB1092, 113th Leg., 1st Sess. § 6. It further provides that "[t]he proper manner of resistance is a state action of nullification of the federal action." Id. § 7. It establishes a process for reviewing any "federal action" to determine whether the action is an "unconstitutional federal action." Id. § 5. It defines "federal action" broadly to include "federal law; a federal agency rule, policy, or standard; an executive order of the president of the United States; an order or decision of a federal court; and the making or enforcing of a treaty." Id. § 4(1). And it defines "unconstitutional federal action" as "a federal action enacted, adopted, or implemented without authority specifically delegated to the federal government by the people and the states through the United States Constitution." Id. § 4(2). The Bill then specifies various ways in which a state action of nullification may be initiated by the governor, the legislature, any Tennessee state court, a combination of counties and municipalities, or a group of registered Tennessee voters. Id. § 9. And once a federal action is nullified by state action under a process provided in Senate Bill 1092, the federal action is rendered "ultra vires, [and] will not be recognized as valid within the bounds of this state." Id. § 8(a)(2).

While the constitutionality of any bill ultimately depends on its specific terms, a bill that provides for the nullification of unconstitutional federal action in the way(s) that Senate Bill 1092 does would be infirm under both the Tennessee and the federal Constitutions.

1. The Tennessee Constitution creates three separate and distinct branches of government—"the Legislative, Executive, and Judicial"—and allocates "[t]he powers of the Government" among those three branches. Tenn. Const. art. II, § 1. The legislative branch makes the law; the executive branch administers and enforces the law; and the judicial branch interprets and applies the law. Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1975); Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975). In general, each branch may exercise only the powers that have been allocated to it. Tenn. Const. art. II, § 2. This constitutionally mandated separation of powers prevents one branch of government from exercising or encroaching on a power or function allocated to another branch. See id.; Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 843 (Tenn. 2008); Richardson, 913 S.W.2d at 453.

Significant here, the authority of the judicial branch to interpret and apply the law includes the power to determine the constitutionality of a law, "a function reserved for the judicial branch." City of Memphis v. Shelby Cnty. Election Comm'n, 146 S.W.3d 531, 536 (Tenn. 2004); see also Richardson, 913 S.W.2d at 454-55. Accordingly, legislative action, like Senate Bill 1092, that vests the governor—i.e., the executive branch—with the authority to nullify unconstitutional federal action is not permissible under Tennessee's separation-of-powers doctrine. See City of Memphis, 146 S.W.3d at 536-38; Richardson, 913 S.W.2d at 453-55.

Similarly, legislative action that vests the legislature itself with the authority to nullify unconstitutional federal action is not permissible because it arrogates to itself the power to interpret the law that properly belongs to the judiciary. City of Memphis, 146 S.W.3d at 538; Caudill v. Foley, 21 S.W.3d 203, 209 (Tenn. Ct. App. 1999).

In short, under the Tennessee Constitution, the judicial branch alone has the power to determine the constitutionality of federal action. And even that authority is limited by federal law, as explained below.

2. Under our federal system, the States possess sovereignty concurrent with that of the federal government, subject to the limitations imposed by the Supremacy Clause of the United States Constitution. Tafflin v. Levitt, 493 U.S. 455, 458 (1990); see Pendleton v. Mills, 73 S.W.3d 115, 126 (Tenn. Ct. App. 2001). State sovereignty is broader but federal sovereignty is superior: under the Supremacy Clause, the

[United States] Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

U.S. Const., Art. VI, cl. 2.

State courts are presumed to have inherent authority to adjudicate claims arising under federal law, but only in the absence of "an affirmative act of power under the Supremacy Clause to oust the States of jurisdiction." Tafflin, 493 U.S. at 458-59 and at 470 (Scalia, J., concurring); see Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 221 (1916). Thus, in those instances in which States have been ousted of their concurrent jurisdiction, state courts are powerless to nullify unconstitutional federal action. Cooper v. Aaron, 358 U.S. 1, 18-20 (1958); see also Phelps v. Mutual Reserve Fund Life Ass'n, 112 F. 453, 465 (6th Cir. 1901); McNabb v. Tennessean Newspapers, Inc., 55 Tenn. App. 380, 391, 400 S.W.2d 871, 876 (1965). Nor can the limited authority of state courts to nullify unconstitutional federal action be reclaimed or enhanced by state legislation in contravention of the Supremacy Clause. See McCray v. United States, 195 U.S. 27, 60 (1904); Gibbons v. Ogden, 22 U.S. 1, 210-11 (1824); Andrew Jackson, Proclamation No. 26, Respecting the Nullifying Laws of South Carolina (Dec. 10, 1832), reprinted in 11 Stat. 773 (1859) ("[T]he power to annul a law of the United States, assumed by one State, [is] incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.").

Cooper v. Aaron is illustrative on these points. In Brown v. Board of Education, 347 U.S. 483 (1954), the U.S. Supreme Court held that school segregation based on race violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and ordered States to desegregate their schools. In opposition to the ruling in Brown, Arkansas amended its Constitution to require the state legislature to resist—nullify—the Court's desegregation order. Cooper, 358 U.S. at 8-9. But in 1958, the U.S. Supreme Court held in Cooper that Brown was the supreme law of the land and that all States were therefore required to desegregate their public schools regardless of any state laws to the contrary. The Cooper analysis began with the basic principle, established in Marbury v. Madison, 5 U.S. 137, 177 (1803), that the federal judiciary is supreme expositor of the law of the Constitution. Id. at 18. It follows, then, that the Supreme Court's interpretation of the Fourteenth Amendment in Brown is the supreme law of the land, and the Supremacy Clause makes that interpretation binding on the States, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Id. (quoting U.S. Const., Art. VI, cl. 2). The Court also pointed out that all state legislative, executive, and judicial officers are "solemnly committed by oath taken pursuant to Art. VI, cl. 3" to support the federal Constitution. Id. In light of these principles, Cooper held that even though the States have primary responsibility for public education, that responsibility, "like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action." Id. at 19.

In short, under this precedent, the Supremacy Clause prevents state legislation that would give state courts greater authority to determine the constitutionality of federal action than the limited authority they have under the Supremacy Clause. Senate Bill 1092 is therefore constitutionally infirm because it attempts to reclaim or increase the otherwise limited authority of state courts to nullify unconstitutional federal action.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Richard Briggs
State Senator
425 Rep. John Lewis Way N.
Suite 774
Nashville, Tennessee 37243