States considering Bills That Nullify Federal Laws That Overstep States Rights

PHOENIX – The Arizona Senate appears to be following in the footsteps of the Idaho and Texas legislatures which are considering bills that would nullify federal laws they believe overstep states’ rights. Three Arizona senators and three members of the Arizona House of Representatives introduced a bill in the Senate Monday that would create a 14-member joint legislative committee to determine if the state should follow a federal law it believes is unconsititutional.

According to Senate Bill 1433, the committee would include the president of the Arizona Senate, the speaker of the Arizona House and six members of each house appointed by either the president or the speaker. No more than four members from each house appointeed to the committee could be from the same political party. The members would serve two-year terms, and either the speaker or the president could call the committee.

According to the bill, the committee would meet, review and make a recommendation by a simple majority vote whether to nullify “in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the people to the federal government in the United States Constitution.” It would have 30 days from the time it received the federal legislation to make its recommendation.

The committee may also “review all existing federal statutes, mandates and executive orders for the purpose of determining their constitutionality” and recommend nullification.

The Legislature has 60 days after the committee’s recommendation to vote on the issue. If the Legislature votes by a simple majority to nullify a federal law, “this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order,” and the committee will “ensure that the Legislature adopts and enacts all measures that may be necessary to prevent the enforcement of any federal law or regulation nullified pursuant to this section.”

According to the bill, the 10th Amendment to the U.S. Constitution guarantees to the states all of the powers that were not specifically granted to the federal government in the Constitution or the Bill of Rights.

Therefore, “no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to pre-empt state legislation. This act serves as a notice and demand to the Congress and the federal government to cease and desist all activities outside the scope of their constitutionally designated powers.”

Sen. Ron Gould said he hasn’t studied the bill, but states have always had the right to nullify or refuse to follow unconstitutional federal laws, he said. The Legislature could vote to approve nullification of an unconstitutional federal law at any time.

The nullification right dates back to the theory created by Thomas Jefferson, Gould said.

According to the Yale Review, Thomas Jefferson created the “Compact Theory” in the 18th century. The theory states that when the states agreed to form a union under the Constitution, they agreed to give up some of their authority, but they did not give up their sovereign rights. Therefore, the states have the right to “nullify” or refuse to follow an unconstitutional federal law or secede from the union.

According to the Associated Press, then Vice President Jefferson made up the doctrine to express his disgust with President John Adams’ Alien and Sedition Acts. The acts were created in 1798 when Adams was concerned about a naval war with France. The acts were made up of four laws, which raised the residency requirement from 5 to 14 years; authorized the president to deport illegal immigrants and arrest and imprison them during wartime; and made it a crime for American citizens to print, utter or publish any false, scandalous and malicious writing about the government. The acts expired in 1801.

The Supreme Court, Congress and the executive branch are all part of the federal government, Gould said. Nullification is the only way states can protect themselves from a federal government that oversteps its bounds.

“It’s a check against the consolidation of power in the federal government,” he said. According to the Associated Press, Alabama was the first state to introduce a “nullification” bill last year. The bill passed the Alabama Senate but died in its House of Representatives.

A similar bill proposed in the Texas legislature would put state officials who don’t comply with the nullification of a federal law in jail, according to the AP.

This is not the first time nullification has been tried by the states. According to the AP, South Carolina invoked the doctrine in the 1830s to fight federal tariffs. In 1850, Wisconsin used it to try and nullify the Fugitive Slave Act. In the 1950s, Arkansas used it to prevent desegregation. In both the 1850 and 1950 cases, the Supreme Court ruled that federal law trumps the state laws.

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