Congress Won’t End the Wars, So States Must

By: Eric Brakey
May 17, 2021

Congress has abandoned our soldiers.

Two years have passed since the release of the Afghanistan Papers, revealing that no one in charge — at any point over the last two decades — has ever held a clear idea as to why our soldiers must die in these aimless, costly wars. Yet Congress, following the lead of the Cheneys and the Clintons, fights to maintain the status quo.

Congress is useless, but the states have proven they are not; in recent years, states have nullified a wide range of unlawful federal policies, from FDA regulations against investigational drugs, to cannabis prohibition, to gun control. There is no reason states cannot also apply Thomas Jefferson’s “rightful remedy” and nullify unconstitutional foreign policy by passing “Defend the Guard” (DTG) legislation. Proposed this year in 31 states, DTG invokes state authority to order home the tens of thousands of National Guardsmen currently deployed in any war that Congress has not formally declared.

Nullification was first proposed in 1798 by Thomas Jefferson and James Madison as a state remedy to overreaches of federal power. When President John Adams signed into law the Sedition Act (authorizing the Adams administration, in violation of the First Amendment, to imprison political dissidents), Jefferson and Madison answered with the Kentucky and Virginia Resolutions, declaring the implied power of the states to nullify unconstitutional federal laws. To this day, the power of states to check federal power holds value for all Americans who wish to live in a free society.

As a member of the Maine Senate, I experienced the power of nullification in action. In 2016, as Senate chairman for the Health and Human Services Committee, I gained bipartisan support in the Maine Legislature for “Right to Try” legislation, nullifying FDA policies restricting terminally ill patients from accessing potentially life-saving drugs. Only after 41 states had enacted Right to Try did Congress (perhaps seeking to maintain its own relevance) take action to pass the law nationwide.

The fight against cannabis prohibition — the most well-known nullification effort — began in the 1990s and continues today. After a half-century of failed efforts to repeal prohibition through Congress, cannabis advocates adopted a nullification strategy. Referendum majorities of California and Maine voted to disregard federal prohibition over medical cannabis. Federal politicians fumed, but twenty years later, 44 states have nullified prohibition for medical and/or adult use.

Nullification is also increasingly popular with Second Amendment advocates. In the last decade, states like Kansas and Missouri have passed the “Second Amendment Preservation Act,” nullifying federal gun control over firearms made, sold, and used within state borders. This year alone, more than a dozen additional states have considered proposals to nullify federal gun control, including Florida and Ohio.
If nullification can work for cannabis, guns, and life-saving drugs, why not war?

Twenty years in, Hillary Clinton and Condoleezza Rice say the bloodshed must continue, but few outside Washington see any point throwing more lives and treasure into the longest wars in American history. According to a 2021 national online survey from YouGov, a majority of Americans — and two-thirds of veterans — support an immediate withdrawal from Iraq and Afghanistan. The American Legion, the largest veterans advocacy organization in the country, has called for ending the “forever wars.” Congress, however, simultaneously beholden to war profiteers and afraid of their constituents, will neither end the wars nor vote to declare them.

This is why groups like [BringOurTroopsHome.US] are giving up on Congress and pursuing DTG legislation. The Pentagon is clearly threatened, and has assigned a two-star general to lobby against these proposals.

Constitutionally, these veterans are on solid ground. The president is only authorized to deploy the National Guard into combat abroad to “enforce the laws of the union,” but without a congressional declaration of war, there is no law of the union to enforce.

We have let Congress shirk its responsibility to our soldiers for too long. It’s time to nullify unconstitutional war.