The House advanced a proposal Thursday to try and stop the government from indefinitely detaining or executing Arizona citizens without due process, despite criticisms the bill defies what is allowed under the Constitution.
The measure is part of a movement by Republican lawmakers to reassert state sovereignty with the help of a 2014 voter-backed initiative designed to allow the state to opt out of what is deems as unconstitutional federal laws.
Republican lawmakers had their first chance to put proposition 122 into action last session with bills that sought to block funding for the Affordable Care Act and demand the federal government transfer all public lands to the state before 2020, among others — though none passed.
The bill by Sen. Judy Burges, R-Sun City West, would prevent federal, state and local authorities from arresting, capturing or executing citizens under the National Defense Authorization Act or the Authorization for the Use of Military Force.
President Barack Obama expressed concerns about provisions in the 2012 NDAA that regulate the detention, interrogation and prosecution of suspected terrorists.
“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” Obama wrote in a signing statement on the measure.
The House gave preliminary approval to Senate Bill 1437 Thursday. It now awaits a formal vote.
At the heart of the matter is a conservative belief that the country is an association of states brought together under the Constitution. Because of that, many Arizona Republicans say the state retains the authority to push back against the federal government.
“(Proposition 122) gives Arizona the right to refuse to cooperate with the president, courts and unelected NGO’s,” Burges said during a vote on another Proposition 122-inspired measure Wednesday.
Burges said she’s concerned the federal government’s broad definition of domestic terrorism allows for indefinite detention and execution of American citizens. To protect them, she wants to pass a bill to ensure Arizona residents have the full protections guaranteed them under the Constitution and citizens of the state, she said.
But Paul Bender, a constitutional law professor at the Sandra Day O’Connor College of Law, says the measure violates the Constitution’s supremacy clause, which grants the federal government legal precedence over states.
“If the federal constitution says you can’t do something the states have to accept that,” he said.
Regardless of the intent of the proposal, states don’t have the authority to overturn federal policies, he said. That authority resides in the Supreme Court, Bender said.
Still, Mesa Rep. Kelly Townsend, who backed the bill in the House, said the measure sends a message to the Federal government that the law is unconstitutional.
“It’s more of a pre-emptive step on the state’s part to say that this may be a federal law on the books, but it’s not a constitutional law,” she said.
The Senate rejected another Proposition 122-backed measure Wednesday that would allow the state to vote on bills blocking authorities from enforcing or financing any federal action not affirmed by Congress.
Rep. Anthony Kern, R-Glendale, is sponsoring a third proposal up for consideration in the Senate that would bar any government agency in Arizona from enforcing new federal firearms laws or regulations that infringe on the Second Amendment.