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Home / Capitol Insiders / FantAZy Island: Secession-laced bills barging through the Legislature may fail, but they express state’s legacy of rage

FantAZy Island: Secession-laced bills barging through the Legislature may fail, but they express state’s legacy of rage

Senate Bill 1433 is a variation on “Just say no.”

And it has about as much chance of succeeding as Nancy Reagan’s 1980s-era campaign to persuade kids not to experiment with drugs.

SB1433, one of more than a dozen pending anti-Washington, D.C., measures known colloquially as Arizona’s secession bills, would create a “Joint Legislative Committee on Nullification of Federal Laws” composed of lawmakers.

The group’s task would be to review federal laws and recommend their nullification if they fell outside the scope of the enumerated powers delegated to the federal government. Once nullification is recommended, the Legislature would have to vote on the proposal within 60 days.

And once a majority of lawmakers voted “yes,” Arizona citizens would no longer be obligated to follow the federal law, rule or executive order.

In short, just because the Arizona Legislature declared so, a federal law would be negated.

“The bill also says that the nullification committee must see to it that only the U.S. Supreme Court is the arbiter of any dispute that may arise between Arizona and the federal government over a state’s decision to declare a federal law null.”

Backers view the measure as necessary to help check the federal government’s abuse of its authority, which they say has become pervasive. They said federal regulations are costly, and states are better stewards of resources.

Something is wrong with the picture, they argued, when the federal government can regulate what people grow in their backyards, including produce that may end up at a farmers market but never actually cross state lines.

But critics of the secession movement said the lament ignores the fact that Arizona is part of a union, that it doesn’t have the authority to simply nullify a federal law, and that the bills that have been introduced are pre-empted by federal law and are likely to be struck down as illegal if litigated.

Sandy Bahr, lobbyist for the local chapter of the conservation group Sierra Club, summed up her criticism of the slew of the so-called states’ rights bills this way: “They’re basically saying we’re an island. Arizona is an island.”

The secession bills and resolutions are marching through the Legislature, even though their most ardent advocates concede most have little chance of actually being implemented.

The measures seek to wrestle control from the federal government over bodies of water in the state, over products that don’t cross state lines, and over the regulation of greenhouse emissions, to name a few.

And that doesn’t even take into account the immigration proposals.

Although defiance of the national government is as old as Arizona statehood (See “Defiant from the start,” Page 11), what is new this year is the sheer number of anti-fed bills that thus far have advanced, a reflection of the new political reality at the Capitol after last year’s election gave Republicans complete control of the state government.

Indeed, most of the secession bills have been approved in committee, and a few have already made it out of the Senate, including a measure that enters Arizona into a compact with other states that have also enacted laws saying their residents cannot be penalized for not participating in any health care plan.

Arizona doth protest too much

But while such measures put Arizona more firmly in the front line of the states’ rights movement, they probably do nothing more than declare Arizona’s objections to perceived overreaches by the federal government.

The measures that create a multistate compact in various policy areas hinge on another state’s joining Arizona, and ultimately, on congressional consent. Finding a partner-state is possible; getting Congress’ approval for such defiant acts is like punching someone in the nose, then asking him for aspirin because your fist hurts.

And as for measures that show teeth, such as the bill that would penalize federal agents who enforce federal commerce laws that contradict a proposed “intrastate commerce” act, it’s unclear exactly how they would be enforced.

Even Sen. Ron Gould, a Republican from Lake Havasu City and a strong advocate of states’ rights, admits the bills are posturing for the most part. But for him, the message still needs to be sent. At the very least, it puts the federal government on notice that Arizona is pushing back.

In addition, some experts in constitutional law argue that nullification is not part of the mainstream conversation about the inherent tension between the federal government and the states over the scope of their respective powers. They say while the federal government has been hugely successful in expanding its powers, the proper venue to challenge that overreach is the court — not through state legislation.

But Michael Boldin of the California-based 10th Amendment Center, which advocates for states’ rights legislation, warned against underestimating the effect of protest.

Actually, Arizona doesn’t have to look far to see how state action can force the federal government to back off, he said.

In recent years, the seeds of successful defiance came from a mind-altering plant called cannabis sativa, a federally classified dangerous drug, which means its distribution is a serious federal crime.

Since California first allowed its medical use in 1996, more than a dozen states, including more recently Arizona, have followed suit.

And more likely feeling the pushback, the Obama administration issued a memo in 2009 encouraging federal prosecutors not to go after people who use and distribute marijuana for medical reasons as long as they act in accordance with state law. Their prosecution won’t be an efficient use of limited federal resources, the memo said.

“What the real lesson is that it doesn’t matter what Washington, D.C., does when enough people in enough states say we want something different, it’s going to be pretty difficult for Washington, D.C., to get that to move forward,” Boldin said.

The legal questions aside, critics argued that federal food safety laws, for example, are necessary to ensure Arizonans are afforded the same protection as California residents.

Bahr, the Sierra Club lobbyist, said federal laws are the only protection for endangered species. The conservation group is battling legislation on numerous fronts, from a bill that says Arizona has exclusive authority to regulate greenhouse emissions to a measure that allows Arizona to join with other states in a compact over the management of endangered species.

James Weinstein, the Amelia Lewis professor of constitutional law at the Sandra Day O’Connor School of Law at Arizona State University, said the chances of the U.S. Supreme Court’s saying it’s all right for individual states to “decide what’s within the federal power and to nullify federal law …  is zero.”

“It’s just not in the mainstream understanding of constitutional conversation. And it wouldn’t work either. It’s impractical. Each state can’t decide for itself. It goes against our understanding that it’s the U.S. Supreme Court that’s the final arbiter of the meaning of the Constitution, not each state legislature,” he said.

Nick Dranias, a constitutional attorney for Goldwater Institute, said to use the term nullification is “terrible marketing” on the part of states’ rightists. But putting aside the term’s immediate connotations, what really matters is what backers mean by it.

If it is used as a vehicle of protest by a state, then Dranias said there’s nothing wrong with SB1433.

On the opposite end, however, if it hews along the argument that each state is equal to the U.S. Supreme Court as a judge of the constitutionality of federal law, then that’s clearly not what the Founding Fathers envisioned, Dranias said.

In between those extremes is a shade of gray, he said.

Dranias said at first glance, he feared that SB1433 would claim the latter interpretation, but a closer scrutiny reveals that it doesn’t.

“In substance, the bill is perfectly consistent with the protest understanding of nullification or the just refusing to be a vehicle of federal power understanding of nullification, and that’s perfectly legitimate,” Dranias said.

In short, the nullification bill is likely just another angry postcard to Congress.

Arizona doth regulate

Of the federal government’s enumerated powers, none has been used more often than the Commerce Clause to justify federal acts regulating activities of states and their residents. The clause says Congress has the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

As a result, it is often the source of controversy regarding the balance of power between states and the federal government.

The tension is inevitable because America is unique in its system of dual sovereignty.

That is, its citizens have representations in two simultaneous governments that have, in their respective ways, attributes of sovereignty. However, some scholars have pointed out that if sovereign means the highest authority in the land, then states cannot claim it. That’s because states cannot declare war, cannot create a navy, and cannot coin their own currency — some of the defining characteristics of an independent country.

Within the last century, the U.S. Supreme Court has shown its willingness to recognize broader grounds whereby Congress can regulate state activity, even if the activity may not on its face deal with goods that cross state boundaries.

More recently, however, the court has reined in the federal government’s regulatory power, and restricted it to activities that are substantial enough to constitute interstate commerce.

Some Arizona lawmakers, however, aren’t satisfied with the status quo.

This lament from Sen. Sylvia Allen, R-Snowflake, is typical among states’ rightists: “It’s absolutely out of our hands when the (federal) government controls the air, the water, animals, light bulbs, toilets, washing machines, guns, homes — how you build them, the dust in your state — how to control the dust. The federal government controls every single aspect of our lives, and it costs us money.”

And so carrying on a defiant stance, Arizona senators on Feb. 17 approved legislation declaring all goods made or grown in Arizona that don’t cross state lines are not subject to congressional authority to regulate commerce among states.

But what sets SB1178 apart from previous efforts is it goes after public employees who enforce federal regulations here in violation of its provisions.

If the bill becomes law, federal agents  who violate it will face a Class 6 felony and a fine that may not exceed $2,000, while state employees will face a Class 1 misdemeanor and a fine of up $500.

The bill’s penalties and fines show that the state is serious about its intention, said Allen, the bill’s author.

When pressed by the Arizona Capitol Times, however, Allen said she’s hoping the issue gets resolved before anyone gets arrested.

“Let’s be realistic here,” she said. “Before we are able to really put this into implementation, of course, we will work out all of these situations with the federal government.”

Defiant from the start

In the past few years, Arizona has joined a lawsuit over the health care overhaul; approved a ballot measure to ensure that residents won’t be compelled to participate in any health care plan; allowed the use of medical marijuana, which is illegal under federal law; and passed immigration laws that critics say usurp federal authority.

Not satisfied with simply sending ignorable postcards to Washington, D.C., Arizona is now more forcefully asserting its authority.

Such don’t-tread-on-me activism is in Arizona’s genes.

Even at its creation, the state loved to poke the federal government in the eye.

Ninety-nine years after it happened, lawmakers still spin the yarn of the rambunctious territory’s bid for a measure of conformity in the second decade of the 20th century, when the West already had been tamed.

Here’s the abbreviated version of the story. After several attempts to become a state, Arizona was finally authorized to draft its constitution.

But President William Howard Taft wouldn’t sign the bill accepting the Arizona Constitution unless a clause that permitted the recall of judges was removed. The provision was undone, and in 1912, Arizona became the union’s 48th state.

Soon after news reached Arizona that Taft had approved statehood, legislators convened a special session to ask voters to put the recall provision back in the Constitution.

The voters said yes.

One comment

  1. I don’t see what the fuss is all about. “States Rights” is really an effort to remove powers from the Feds and pass it off to the 10,000 or so independent principalities known as HOAs that are unaccountable to the state.

    SB 1170, which asserts that control of public streets belongs to the public and not to the HOA, sits in limbo again. Similar bills haveg been defeated for several years.

    HB 2441 allows a minority of members in an HOA to approve amendments to HOA CC&Rs. It will permit the alleged “sacred” HOA contract at purchase time to be amended by others without the owners consent. SB 2441 also denies homeowner access to civil courts to challenge these amendments. It awaits Senate a vote.

    SB 1148, an attmept to restore due process protections by means of an administrative law judge, which was declared unconstiutional, awaits a House GOV committee vote. The OAH independent tribunal would hear HOA disputes without the need for an attorney. Yet, it seems that the “opportunity to be heard” kanagroo court process used by the PRIVATE entity HOAs is acceptable as being constitutional. Go figure.

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