The more that comes out about Acting Attorney General Matt Whitaker, the more far outside the mainstream of even conservative legal thinking he is. He makes Clarence Thomas seem like a moderate. Not only does he not believe in judicial review, he also thinks states can nullify federal law whenever they disagree with it.
The question of the Supremacy Clause of the Constitution was settled by the courts literally 200 years ago. Since then, who has challenged that premise? Mostly racists. For instance, John Calhoun advocated nullification to protect slavery against federal intervention. The entire Civil War was fought over that very idea. And when Martin Luther King spoke in his I Have a Dream speech about Southern governors whose mouths were “dripping with the words of interposition and nullification”? He was referring to George Wallace and other neo-Confederate, pro-segregation governors who claimed the authority to nullify federal civil rights laws and Supreme Court rulings like Brown v Board of Education.
“As a principle, it has been turned down by the courts and our federal government has not recognized it,” Whitaker said while taking questions during a September 2013 campaign speech. “Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?”
“The federal government’s done a very good job about tying goodies to our compliance with federal programs, whether it’s the Department of Education, whether it’s Obamacare with its generous Medicare and Medicaid dollars and the like,” he added. “But do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that.”
This fight is over. It was over a long time ago. Virtually no one except the most far-right extremists still believe nullification is a valid judicial doctrine. The 14th Amendment settled it, if nothing else. Ruth Marcus was right, Whitaker isn’t just some standard Trump puppet — he’s an absolute and total crackpot who shouldn’t be allowed anywhere in the vicinity of the DOJ, much less running it.