Local Nullification Efforts

Voluntaryist Student made several good points in comments last week, one about nullification, so I thought I’d do a response to that concept. I read Thomas Woods’ book Nullification some months ago and found it persuasive—enough that I don’t fully understand why the concept seems so far outside the mainstream. The word refers, essentially, to states or lower levels of government asserting their autonomy (see 10^th Amendment to the Constitution) when the federal government usurps powers not granted to it.

States and individuals are working from various angles to nullify (make of no import) Obamacare, for example. I’ve been following a couple of attempts in my state legislature. One is a bill that disallows the mandate to purchase health insurance, saying essentially that Obamacare can’t be enforced in this state. And since we’re a big state, it’s unlikely the federal government would quell our resistance with force (at least we can hope). The other is to join in the multi-state compact, a work-around of sorts, to use market forces, cross state lines, and give states the responsibility to deal with their own health care issues as they see fit. I’m a little hesitant about the compact, mainly because when I read the legislation, or even the website, I can’t tell precisely what any unforeseen outcome might be. But in theory having states join together to resist a federal order against their interests, and which the federal government was never given the authority to impose, seems to be a good thing. You can read more about the compact at the official site: HealthcareCompact.org.

There’s another very local version of nullification that I’m observing with some interest. About ten miles from my lives a special forces marine, retired, who put up a good-sized flagpole in his backyard, where he displays the American flag with great respect. His homeowners association decided that this wasn’t to be tolerated. There wasn’t actually a decree in the HOA covenants saying such a flagpole was not allowed, but when the veteran refused to take it down, the HOA enacted such a covenant and refused to “grandfather in” the veteran. They are fining him $200 a day, suing him for payment, and including their legal costs in the suit—so far approaching $20,000. I hope your outrage is approaching mine. It’s his back yard! It’s the American flag! He’s a veteran and displays it respectfully! In what possible way can such a display lower the home value in the neighborhood—the purported reason for an HOA to have any say in how a person’s yard looks?

There is a bill currently in the state legislature attempting to make such a display legal, essentially nullifying the HOA rule and any like it across the state. But there are thousands of bills in a legislative session. Getting attention to this small issue is a challenge. We’re nearing the end of the session; I’m not certain whether we’ve already passed the date when it must already be placed on the calendar in order to receive a vote before the session closes. (I’ve been following a list of bills this session but only became aware of this one lately and don’t have a bill number, so I’m uncertain how it’s turning out.)

This could be another whole post, but I am curious about how HOAs got this tyrannical power. The rule of thumb is that whatever must be done by a government should be done at the most local level possible. It’s hard to get more local than an HOA. And yet these little tyrannies have been known to impose ridiculous rules about paint color and gardening rules, and have enforced them with the threat of taking your property. I can’t see any situation where an HOA should have the power to seize property. If you have failed to pay your dues for some time, I can see they might be able to put a lien on your property, so that the payment dues (maybe even with a standard interest added) could be recouped upon sale of the property. I can’t see why they should be able to usurp ownership, sell your property out from under you for the cost owed, leaving you without your property.

I’m told it has to do with contract law; it depends on what you agree to when you sign the covenants. But you have to sign the covenants in order to purchase the property. And while that is a choice you make, finding a home without an HOA might not be an option—and it certainly wouldn’t be an option for a specific house. Nor is an owner able to sell a property to someone who won’t sign the covenants.

While I appreciate that my HOA tends to keep home values up, I do resent it a little when they inform us that the north side of our house has mildew on the siding that must be removed, or we will be fined. This is a humid climate. I don’t mind the reminder. But it’s odd that they always find it before we do. It isn’t visible from the street. It isn’t really visible from the sidewalk. You have to get off the sidewalk, look up from under the neighbor’s tree, and hunt for the flaw in our home care. What would be better, if they have people dedicated to finding these little bits of mildew growth, would be to send us a notice along with recommendations for how to treat it or prevent it, rather than simply a threat along with the assumption that we are derelict homeowners.

In a way, the usual principle applies: let the lowest level of government handle the problem. If an HOA is controlling what the homeowner should be handling—even when the control is not relevant to the larger neighborhood—then that opens up the possibility of tyranny that we experience in our very homes.

But you can see that nullification (ignoring the HOA), as the marine veteran has done, can be dangerous and costly when you do it all alone. So the way for nullification to be effective is for the idea to spread, so that the force of the people cannot be overcome by the dictating government. That takes persuasion and connecting, skills I believe we need to acquire.