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Rules attorneys warn bills are unconstitutional — to no avail

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When the House Rules Committee held its first meeting of the year to discuss a states’ rights bill by Republican Rep. Bob Thorpe, rules attorney Tim Fleming told lawmakers the exact same thing he told them about the exact same bill last year: It’s likely unconstitutional.

And just like last year, the committee, whose sole responsibility is to ensure bills are constitutional and properly drafted, ignored the attorney’s advice and approved the bill.

Thorpe, a Flagstaff Republican, is the sponsor of HB2097, which would prohibit state and political subdivisions from using personnel or financial resources to aid the federal government in any action that constitutes an act of “commandeering.”

Fleming warned the Rules Committee members on January 23 that the definition of commandeering goes too far and is likely in conflict with the Supremacy Clause of the U.S. Constitution.

Specifically, Fleming was worried about the part of the bill that would allow the Arizona Legislature to ignore U.S. Supreme Court rulings that the Legislature deems unconstitutional.

“That kind of puts our whole system on its head. It doesn’t quite work that way,” he warned the committee.

Fleming added that it’s the courts, and the federal courts in particular, that have “the ultimate say” in what is and isn’t unconstitutional – not the Arizona Legislature.

Republican Rep. Eddie Farnsworth of Gilbert, an attorney and self-described “constitutional conservative” who told the Arizona Capitol Times in 2013 that his very first litmus test for any bill is whether or not it is constitutional, wasn’t totally persuaded.

Farnsworth asked Fleming if there’s ever a time when states have the authority to declare something unconstitutional.

“Let’s say the courts come back and say slavery is OK,” Farnsworth posed.

Fleming said that generally, there are limits on federal authority requiring states to use their resources to enforce federal laws. However, the state cannot simply choose to overrule a U.S. Supreme Court ruling.

Farnsworth agreed that the bill “may be a little broadly drafted,” and suggested the committee hold it until a fix presented itself.

But when it came time to vote on whether the bill was constitutional, Farnsworth changed his mind, saying he wasn’t “100 percent convinced this is unconstitutional.”

The other Republicans on the committee followed suit.

Republican Reps. Phil Lovas of Peoria and Kelly Townsend of Mesa both expressed concerns about the bill’s constitutionality and suggested Thorpe amend the legislation when it goes up for debate from the full House.

Then they voted that the bill was constitutional.

House Majority Leader John Allen of Scottsdale also voted that the bill was constitutional, adding, “What the heck.”

It was a typical meeting of the House Rules Committee, the same way it’s been carried out for decades, according to former Rules Committee attorneys.

The Rules Committee attorneys, both in the House and Senate, are generally not permitted to speak to the press on the record.

But former Rules Committee attorneys say rejection of their advice often comes with the job.

The House and Senate Rules committees are perhaps the most powerful committees in the Legislature. Every bill must pass through the Rules Committee in each chamber before receiving a vote from that chamber.

And the attorneys for the Rules Committee are perhaps the most important, and most frequently ignored, lawyers at the Capitol.

Hardly a year goes by when the Legislature doesn’t approve a bill that is later struck down as unconstitutional. And almost every time, the rules attorneys had warned lawmakers that was a possibility.

It’s a job that requires a certain personality type, according to Chuck Bassett, a lobbyist and former House Rules attorney who advised the committee in the 1990s.

“You’ve got to be uptight enough to do the research and have the answers, and laid back enough to just let it go,” he said, adding that Fleming has the perfect temperament for the job.

Bassett specifically remembers one high-profile bill during his tenure that he thought was clearly unconstitutional, but which was a big priority for legislative leaders.

When he told lawmakers about the bill’s constitutional problems, the Rules Committee approved it anyway.

“I think it was kind of shocking the first time that happened, but after that it was just part of the job,” he said. “It never upset me or anything. We were just there to give them a heads-up on constitutional issues.”

Stacey Weltsch, a Senate rules attorney from 2011 to 2013, agreed, saying part of the job was to not take it personally if lawmakers disagreed with or disregarded her legal opinion.

But still, on the few occasions that a bill she had flagged would get struck down in court, Weltsch couldn’t help but feel “a little bit of pride, a little bit of the I-told-you-so attitude.”

On the flip side, on the rare occasions the Rules Committee voted down a bill she had flagged, “that was the worst feeling ever … because you knew the buck had stopped with you, and you’re going to catch all the flack for stopping the momentum of that bill,” she said.

But the job requires that you call them as you see them, she said, even if it’s an unpopular call.

Bassett agreed, saying there’s a perception among some Capitol observers that the rules attorneys are pressured to advise that certain bills are constitutional. But he said that was never the case.

“I was never afraid of what the reaction to my opinion would be. Number One, it’s not that powerful of a position. And Number Two, they can just ignore you,” he said.

And lawmakers have many reasons for ignoring the opinions of their rules attorneys.

Don Isaacson, a lobbyist who started his long career at the Capitol in the 1970s as a rules attorney, said even when he was overruled by politicians on the Rules Committee, he always felt they at least listened to and weighed his opinion.

But that doesn’t mean they always agreed with him.

“There are bills where you can pretty clearly say ‘this is most likely unconstitutional.’ But people overrule you because they sense this could be a close question, or the court has changed, we may get a favorable ruling,” he said.

And until a court decides something is unconstitutional, it’s just one attorney’s opinion.

Weltsch said, “You could ask 10 different attorneys the same legal question and get 10 different answers. So you learn your opinion is not the be-all-end-all of the legal world. You do have to have a little bit of humility and understand your place in the process.”

And sometimes lawmakers actually want to be sued. By pushing legislation with questionable constitutionality, lawmakers can spark a lawsuit in hopes of setting court precedent that moves the line on issues like abortion, she noted.

“I really do think they respect the advice of the rules attorneys and take their advice seriously. But a rules attorney’s function and a legislator’s function are two very different functions,” Weltsch said.

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