by John Dinan
December 03, 2013
This policy analysis calls attention to various ways that states talk back to Washington using tactics that go beyond lobbying and litigation but fall short of nullification. First, states can enact measures decriminalizing certain practices, hoping federal executive officials will not enforce federal statutes in states with contrary policies. Second, states can decline to participate in federal programs and accept the designated penalties. Third, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with Supreme Court precedents, hoping the Court will reconsider and relax judicially imposed constraints on state policy discretion. Fourth, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with federal statutes, hoping the Supreme Court will invalidate or limit the reach of federal statutes. In recent years, state officials have relied on each of these tactics and with some success.