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 bill cannot be saved by drafting fixes. The constitutional defects are structural, not technical. The legislature cannot give itself, the governor, or even state courts the broad nullification power the bill envisions. If the policy goal is to push back against specific federal actions, the available paths are litigation, federal lobbying, and noncooperation in administering particular federal programs (within constitutional limits). State legislative declarations that federal law is "ultra vires" do not have legal effect.

If you are an attorney advising state officials

The AG's analysis is straightforward. State officials cannot ignore or refuse to apply federal law on the ground that it has been "nullified" under a state statute. Cooper v. Aaron specifically addresses this and is binding precedent.

If you are a citizen interested in states-rights advocacy

The legal answer to nullification has been settled for almost two centuries (Jackson, 1832; Marbury v. Madison, 1803). State courts and state officials cannot override federal law. The political answer (push back through elected federal officials, advocate for federal legislative or constitutional change) remains available.

If you are a state court judge

Your authority to evaluate the constitutionality of federal law is limited and exists only when concurrent jurisdiction has not been displaced by federal law. State legislation purporting to expand that authority is foreclosed by the Supremacy Clause.

If you are a constitutional law student or scholar

The opinion is a clean restatement of vertical (state vs. federal) and horizontal (legislative vs. executive vs. judicial) separation-of-powers principles. The core authorities are Marbury, Gibbons v. Ogden, McCray, and Cooper v. Aaron. The Tennessee dimension comes from Richardson, City of Memphis v. Shelby County Election Comm'n, and Caudill v. Foley.

Common questions

Q: Hasn't the Supreme Court been wrong before?
A: It has, and many of its decisions have later been overturned. But the legal mechanism for changing federal law is federal: federal litigation, federal legislation, or constitutional amendment. State nullification is not on the menu.

Q: What about the Tenth Amendment?
A: The Tenth Amendment reserves to the states (or to the people) powers not delegated to the federal government. It does not authorize state nullification of federal action. Even when federal action exceeds enumerated powers, the remedy is federal-court adjudication, not state-imposed override.

Q: Why isn't a state court allowed to declare a federal law unconstitutional?
A: A state court can do so within the narrow scope where concurrent jurisdiction exists. State courts cannot enjoin federal court proceedings (Phelps), and they are bound by U.S. Supreme Court interpretations of the Constitution (McNabb). State legislation cannot expand state courts' authority beyond what the Supremacy Clause allows.

Q: What about state laws that refuse to spend state money on federal programs?
A: That's different. States may decline to spend state resources to enforce federal programs (the anti-commandeering doctrine in Printz and New York v. United States is the federal-side counterpart). But that is not nullification of the federal law itself; the federal law remains in force, and federal authorities remain free to enforce it directly.

Q: What was the Cooper v. Aaron situation?
A: After Brown v. Board of Education ordered desegregation, Arkansas amended its constitution to require the state legislature to resist the desegregation order. The Supreme Court held in Cooper that Brown was supreme law and that the Supremacy Clause foreclosed state nullification. The opinion includes the famous Andrew Jackson 1832 quote rejecting nullification as inconsistent with the Constitution and the Union.

Q: Could the bill be redrafted to be constitutional?
A: The structural problems (legislature/governor exercising judicial power; state legislation expanding state-court authority over federal law) cannot be fixed by redrafting. A bill that looks like nullification will not survive the analysis.

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