Responding to an audience member’s question about halting federal mining regulation in Oklahoma, Mullin embraced what appears to be a sweeping new version of nullification, the unconstitutional idea that states can invalidate federal laws. In Mullin’s words, “if you understand and you read the Constitution like some of you do, regulations fall on the state. The only time the federal [sic] is supposed to be getting involved is when the state isn’t taking care of it.”
Mullin’s reading of our founding document reverses how the Constitution actually works. The Constitution provides that duly enacted federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” So it is not true, as Mullin seems to believe, that when Oklahoma enacts a mining law that somehow displaces federal law. If anything the opposite is often true. Congress has the power to “preempt” state laws that it wishes to displace, although it is by no means required to do so. Federal and state laws often complement each other and act in concert to regulate the same industry.
It is true that, for several decades in the late Nineteenth and early Twentieth Century, the Supreme Court misread the federal government’s power to “regulate commerce . . . among the several states” to strip the United States of its lawful authority to regulate mining, manufacturing, agriculture and other key elements of the nation’s economy. But it is difficult to understand why Mullin might choose to return to this era. Last year, for example, twenty coal miners died from work related injuries. Every one of these deaths was a tragedy, but is also a far cry from the more than two thousand coal miners killed in 1920 — a time when federal mining safety laws were deemed unconstitutional by the Supreme Court. Indeed, such high fatality rates were routine in the era of minimal regulation that Mullin seems to pine for today.
Indeed, during the same town hall meeting, Mullin appears outraged that the United States has gone too far to protect workers’ lives — “[i]f you look at the trucking industry, from 1978 til now, we’ve improved our accident rate and fatality rate by almost 80 percent . . . yet they want more.”