With A Hateful Whimper

Roy Moore’s George Wallace homage is more pathetic than anything else.

However!  This blog always believes in being fair-and-balanced, so let’s get an alternative perspective from Ed Whelan:

Consider this hypothetical: In the immediate aftermath of the Supreme Court’s Dred Scott ruling, a federal district court, applying the principle of Dred Scott, enjoins a northern state from enforcing a law providing that a slave who is voluntarily taken by his master into the state thereby becomes free. Must state officials comply with the injunction?

If your answer to the question is no (or maybe not), then you agree (or might agree) with Moore that state officials have a right to resist federal orders they regard as constitutionally unsound (even as you of course might disagree about his application of that principle).

Now assume that the Supreme Court affirms the lower court’s order. Must state officials then comply with the injunction?

If your answer to the question is no or maybe not, then you’ve gone further than Moore has yet gone.

I take the uselessness and laziness of the analogy to be self-evident. A moral evil on the scale of human bondage justifies actions than might not be justifiable in other contexts. You can plausibly argue that John Brown’s terrorism was morally justified. This doesn’t really mean anything unless you want to argue that giving marriage licenses to same-sex couples is morally comparable to treating human beings as chattel.

Let’s try to make these hypotheticals a little more useful, shall we?  If state officials can nullify any federal court decision they disagree with, surely the case is even stronger for members of coordinate federal branches.  So:

• Perhaps Whelan wants to argue that what justifies resistance to Dred Scott — and I’ll be the first to say that I have no objection to Lincoln and the Republican Congress treating the decision like toilet paper — was not that it sided with the Slave Power but that the dissenters had the better of the legal arguments.  I am intrigued by this suggestion!  Let’s say that resistance to Supreme Court decisions is justified whenever the Court finds limits on explicit grants of power to Congress by citing implicit guarantees of equal state sovereignty.  I look forward to Whelan’s post arguing that the states covered by Section 4 of the Voting Rights Act are required to preclear any changing to their voting laws with the Department of Justice.
• And while we’re here, given that any Supreme Court opinion reversing King v. Burwell is likely to make Dred Scott look like a model of judicial craftsmanship by comparison, I’m sure Whelan will also agree that the IRS is well within its authority to issue tax credits to eligible persons who purchase insurance on federally established state exchanges, any Supreme Court decision to the contrary notwithstanding.