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Public Administration and the New Nullification

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Thomas E. Poulin
September 7, 2020

Public administration is challenging at the best of times, requiring continuous testing the waters to determine what priorities must be achieved to meet community needs and expectations. It requires working in a concerted, unified manner, and this becomes increasingly difficult in the era of new nullification.

In essence, to nullify is to cancel in a deliberate fashion. Historically, in the United States, the argument has been states had the right to nullify any federal law with which they disagreed. The United States’ Supreme Court has repeatedly rejected this argument in favor of the Constitution’s Supremacy Clause (Article VI, Paragraph 2), which states the Constitution is “…the Supreme Law of the Land…” Representatives of the states might make such arguments during legislative debate, and the states might appeal to the courts if they believe an act is an inappropriate usurpation of their authority. This is not nullification—this is governance, and such debates are critical in a functioning democracy. The courts determine the constitutionality of the act.

In nullification, the states simply refuse to comply with the law or to enforce it within their jurisdiction. They do so openly, vocally, and in a manner which challenges the federal government to respond. Frequently, it is done in a manner encouraging other states to act similarly. One of the most visible examples in the Twentieth Century was that of local and state schools refusing to integrate, requiring the federal government to send in federal agents and the National Guard to enforce the law. This created a sad spectacle for the public, and created unnecessary tensions between state and federal governments, their respective agencies and their communities. The same types of conflicts have also been seen between local governments and their states.

The new nullification embraces the traditional arguments, but has extended itself to the perception that individuals have the right to nullify any local, state or federal law which they consider unconstitutional. They do not challenge the issue in court, but instead simply argue they will not be wronged, and refuse to comply with any directive with which they disagree. Even if others appeal to courts who rule the government action is lawful, the refusal to comply escalates with the argument that the judicial system must be flawed if it views the issue in a manner differently than does the individual, and consequently any court decisions may be rejected.

We can see these types of issues routinely in our communities, but in the past the numbers were smaller. Over time, we have seen the numbers grow, especially in relation to the pandemic. Individuals living in a media bubble may decide any COVID-19 prevention recommendation is meaningless, based upon what they have seen in their own “research” (i.e., they “Googled it”). They nullify the recommendations of public health officials.

We see this within public agencies, where individual employees might argue they are free from providing any function they hold to be an inappropriate application of government power, even when the task is considered a core function of their position. These employees do not challenge the issue in court. They just assert their refusal, often doing so in a public forum such as a social media platform in an attempt to garner public support for their nullification efforts.

Executive orders by leaders of local or state governments are routinely rejected by some, even when courts have ruled these leaders have such executive authority based on the constitution of their particular state. We have seen this during the pandemic, where several state court systems have acknowledged the legality of a governor’s executive orders during a public health crisis, only to have the decision ignored because it is “tyranny” and not a lawful exercise of executive authority. If a local or state legislative body enacts an ordinance or law related to the pandemic, we might see some legislators argue the act is unlawful and the new law should be ignored, even though our system of government embraces a system of laws created by majority vote in the legislatures.

In a most egregious form, we see the constitutional sheriff’s movement which argues there is no legal authority above the county level, and each elected county sheriff is the sole determinant of what is lawful or not within their jurisdiction. In some sense, this appears to be the direction some in society are moving, rejecting any authority beyond themselves. Their concern is not the courts, but public support. Consequently, as a rule, these acts of nullification take place in the public forum, not in the courts, creating a challenge for public administrators seeking to discharge their functions.

Sadly, there is no proven approach for these challenges, but there are some key points for the leaders of public agencies to consider:

  • AWARENESS: Be aware of the new nullification, accepting it does exist, and that it might emerge in your community or agency at any time, in any form.
  • ASSESSMENT: Assess each situation appropriately. There is the potential the individuals challenging the legality of an action might be right, but have simply failed to challenge it appropriately. You must act from a solid foundation.
  • ACT: If challenged openly, act tactfully, act respectfully, act temperately, but ACT!! If public agencies ignore these challenges, they enable the dysfunctional behaviors to continue, and the challenges will grow in scope and scale. This will negatively affect service delivery, and the community will suffer.

Author: Thomas E. Poulin, PhD, MS(HRM), MS(I/O Psych.), EFO, serves on the core faculty of Capella University’s public administration programs. Prior to this, he served for over thirty years in the public sector. He is the President of the Hampton Roads Chapter of ASPA, and he may be contacted at [email protected]

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The American Society for Public Administration is the largest and most prominent professional association for public administration. It is dedicated to advancing the art, science, teaching and practice of public and non-profit administration.

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