State nullification — the idea that states can override federal mandates or legislation they feel is unconstitutional — has become popular in recent years, although it has been shot down in the Legislature several times.
In 2012, however, voters may have the option to decide whether the state Constitution should be amended to allow Arizonans to “reject any federal action that they determine violates the United States Constitution” through a majority vote in an election or through a majority vote of their representatives in the Legislature.
Jack Biltis, the Phoenix man behind the Checks and Balances in Government initiative, said he is responding to what he sees as government overreach — especially the individual mandate component of the federal health care reform.
Biltis, who owns a small business, said the initiative aims to give citizens and state officials an option besides lawsuits to challenge the constitutionality of a law. It would act as another check on the system, keeping the U.S. Supreme Court from having the last word, he said.
“Nothing against the Supreme Court — they get it right about 85 percent of the time,” Biltis said. “But that means they get it wrong about 15 percent of the time.”
Biltis, who is not a lawyer, said he has talked with scholars and attorneys about the viability of the measure and received positive feedback.
But one of the state’s leading constitutional scholars disagrees.
Arizona State University law school professor Paul Bender, one of the most vocal critics of the nullification movement, said the proposal will never pass constitutional muster.
“It’s an expression of the desire to free yourself of the federal government whenever you feel like it,” he said. “But if you want to stay in the Union, you can’t do that.”
Bender said nullification laws have no constitutional basis.
“They’re useless. They have no legal effect,” Bender said. “The state cannot be free of federal law — federal law is supreme.”
Bender said Article VI of the U.S. Constitution, commonly referred to as the Supremacy Clause, renders such proposals useless. The clause says that the Constitution and the laws made “in the pursuance thereof… shall be the supreme Law of the Land.”
But Biltis says his initiative is supported by the Supremacy Clause, as it also says that “the Senators and Representatives before mentioned… shall be bound by Oath or Affirmation, to support this Constitution.” A nullification law, he said, would be a means of making sure that happens.
“The Constitution is a piece of paper — it can’t enforce itself,”
Biltis said. “States, with their ability to tax and enforce laws, are in a position to defend it.”
In practice, Biltis argued, many states already override federal laws or regulations by simply choosing not to enforce them. He cited medical marijuana laws as an example: States with those laws, including Arizona, are in direct conflict with federal drug laws, but the federal government has chosen not to crack down on those states, citing “limited resources.”
To get his proposal on the ballot, Biltis needs to collect the valid signatures of 259,213 registered voters.
Biltis wants to at least bring the question to the center of national debate, so it can be decided — once and for all — how much say states have in policy decisions made at the national level. It’s a cause he has become so passionate about that he has mortgaged his own house to fund the campaign.
But Bender said the nullification program Biltis is proposing is a bad deal for Arizona. In addition to the money it would cost the state to defend the idea in court, the state stands to lose billions of dollars in federal funding, which is often withheld when states don’t comply with federal mandates. The ASU professor sees the entire movement as a big distraction grounded in the belief that individuals and states can declare themselves free of the federal government.
“Do these people really believe they can do that?” he said. “They don’t, and they need to be told that. They need to come to their senses and back to reality.”