Assistant Chief Deputy Attorney General Briane Kane told a crowd at an American Civil Liberties Union of Idaho (ACLU) event Tuesday that allowing states to nullify federal laws, a topic broached by Idaho lawmakers the past few years, would lead to states seceding from the U.S.  Several lawmakers who backed such measures were on hand and disagreed with Kane’s legal views.

“Nullification theoretically falls apart on itself because you create the buffet of law, meaning state one chooses this law and state two chooses this law,” Kane said.  “You have zero uniformity.”  He also said that if states could nullify federal law, they would have unchecked power, which the framers of the Constitution tried to avoid.

“If you advance the theory of nullification, you’ve created an unchecked power, because who is it to tell the state that they’re wrong on nullification? There isn’t anyone,” said Kane.

Immediately after that comment, Rep. Pete Nielsen, R-Mountain Home, who backed such laws, asked Kane what checks there are on the U.S. Supreme Court, which is often the ultimate arbiter on constitutional issues.  Kane said Congress has some power to regulate the Supreme Court.

During the legislative session, Kane wrote several opinions on behalf of the attorney general’s office questioning the constitutionality of laws that called for nullifying or limiting implementation of new federal health care laws.  Lawmakers ended up passing a scaled-back version of that plan, which was vetoed by Gov. Butch Otter and replaced with a similar executive order.

Kane mentioned the Civil War numerous times in his presentation on nullification, adding that he was surprised that a country as big as the U.S. has only had one civil war since its creation. He defined nullification as the theory that a state has the right to invalidate federal laws it deems unconstitutional.

Rep. Vito Barbieri, R-Dalton Gardens, who helped write some of the anti-health care reform plans, heard Kane’s presentation. He said Kane did a good job presenting the legal opinion of the attorney general’s office, but differed on the potential effects of states nullifying federal laws.

“I don’t know that there’s an automatic conclusion that secession is necessary just by the act of state’s nullifying,” Barbieri told  “I wouldn’t extend it that far at all.”

Barbieri said lawmakers will take up nullifying or otherwise pushing back against the federal government again.  “The federal government is overintruding into state affairs in so many different areas,” he said.

Kane said nullification is an important topic, since many people are concerned with the actions of the federal government.  “There’s a legitimate debate here about the scope and size of the federal government and the scope and size of the states,” he said.

States’ pushback against federal laws goes beyond health care.  Idaho lawmakers passed a law rejecting the REAL ID plan for enhanced drivers licenses and approved a firearm freedom law that blocks federal gun regulations on any firearm made and sold wholly in Idaho.  That law, a copy of similar laws in other states, has been struck down by a federal court, but is headed for an appeals court.  Other states have legalized medical marijuana; that idea has been suggested by Idaho Rep. Tom Trail, R-Moscow, but gotten nowhere.

Kane said the nullification issue was one factor in what he said was record public participation during this year’s legislative session.  “The backbone of our system is our ability to question our government,” he said.  Kane also listed several steps less severe than nullification that states or individuals can take to show displeasure with the federal government.  That list include acts of civil disobedience, opting out of federally-funded programs, litigating the constitutionality of a law and complaining loudly.  Idaho has taken each of those actions at times, including suing to stop the federal health care law.

Kane also said there’s one step beyond nullification: revolution.

Note: is published by the Idaho Freedom Foundation, which helped write the health care nullification legislation.

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  1. “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

    His opinion that allowing nullification creates discourse, but not supporting it supports tyranny. Second, if a law is unconstitutional its already invalid regardless if the states nullify it.

  2. Kane left out another way – work within the system, keep a cool head, build a legitimate case for change that you support.

    To Reps Nielsen & Barbieri: Maybe I’d like to nullify legislation you’ve been responsible for – oh, but that’d just be silly wouldn’t it? Kind of like an immature child – just mad because things didn’t go the way he wanted. Grow up, boys and quit grandstanding.

  3. Great Article Mr. Hoffman! Looks like the time is right for the State of Idaho to get the Nullify Now Tour! Nullification is not a theory, it is a Possibility! When you have no foundation of proof then you deal in Theory, but when you have grounds and proof of truth it is then a Possibility! A Possibility that has now grown roots in many states as the legislation is submitted by State Law Makers. To make it bring forth fruit we MUST educate the Citizens of this “Rightful Remedy”! I ask you,Sir, and all your followers to send out an email asking people to help bring “Nullify Now!” to Idaho. Here is the link; Those who are involved in any Liberty Minded Group in Idaho let me know and we can get them as local sponsors on this site above for free! Keep pushing forward with the truth!
    In Liberty,
    Bonita Colley

  4. It’s nice to know someone in our state government has a considered legal opinion. As for pretty much anything coming from Nielsen or Barbieri, we are wingnut-central.

    All that’s needed to put the cherry on top is Phil Hart weighing in on the subject.

    From a practical point of view, we’d best all hope the gang that couldn’t shoot straight doesn’t get what they so fervently profess to desire. The Great Nation of Idaho would be a pathetic orphan.

  5. […] at the ACLU Union of Idaho event that nullification would lead to states seceding from the Union. The Idaho Reporter reports he “mentioned the Civil War numerous times in his presentation on […]

  6. […] at the ACLU Union of Idaho event that nullification would lead to states seceding from the Union. The Idaho Reporter reports he “mentioned the Civil War numerous times in his presentation on […]

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