judicial review has the power to declare a law unconstitutional.
judicial review has the power to declare a law unconstitutional.
who has the power to declare a law unconstitutional?
judicial review
nullification should be distinguished from the situation in which a state brings a lawsuit to challenge the constitutionality of a federal law. a state may challenge the constitutionality of a federal statute by filing a lawsuit in court seeking to declare the federal law unconstitutional. such a lawsuit is decided by the courts, with the supreme court having final jurisdiction. this is the accepted method of challenging the constitutionality of a federal statute. this is not nullification, even if the courts uphold the state's position and declare the federal statute unconstitutional. the theory of nullification is that the states have the unilateral power to determine the constitutionality of federal laws, and that a state's determination of unconstitutionality cannot be reviewed or reversed by the courts. thus, nullification involves a declaration by a state that a federal statute is unconstitutional and cannot be enforced within the state. under the theory of nullification, such a declaration by a state is final and binding, and cannot be overruled by the courts. on the other hand, when a state files a lawsuit in court challenging the constitutionality of a federal statute, the decision on constitutionality is made by the courts and ultimately can be decided by the supreme court, not by the state legislature or state courts. because such a lawsuit recognizes the authority of the supreme court to make the ultimate decision on constitutionality, it is not a use of nullification.
nullification (u.s. constitution)
district judge reed o'connor of texas ruled in favor of the plaintiffs on december 14, 2018, stating [that the] "individual mandate can no longer be fairly read as an exercise of congress's tax power and is still impermissible under the interstate commerce clause—meaning the individual mandate is unconstitutional." he then further reasoned that the individual mandate is an essential part of the entire law, and thus inseverable, leading to declaring the entire law unconstitutional. judge o'connor's decision regarding severability turned on several passages from the congressional record during the aca debate that focused on the importance of the mandate in supporting the healthcare marketplace. while o'connor ruled the law unconstitutional, he did not declare the law overturned with this decision. through twitter messages following the decision, president trump urged congress, particularly mitch mcconnell and nancy pelosi, to enact a replacement for the aca with stronger protections for pre-existing conditions.
patient protection and affordable care act