It's Not Just Maricopa, It's the Whole Damned State

It is emphatically the province and duty of the judicial department to say what the law is.

Chief Justice John Marshall, Marbury v. Madison (1803). 

It is emphatically the province and duty of Arizona's "Joint legislative committee on nullification of federal laws" to say what the law is.

Proposed SB 1433, Arizona Senate, First Regular Session 2011.

OK, the Arizona thing isn't a quote.  Actually I made it up.  But the conflict is real, or at least it will be if SB 1433 is enacted.  The bill creates that "Joint Legislative Committee on Nullification of Federal Laws" consisting of a bunch of state senators and a bunch of state representatives.  Here's the guts of Section 1.

C.  the committee shall recommend, propose and call for a vote by simple majority 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.  The committee shall make its recommendation within thirty days after receiving the federal legislation for consideration and process.

D.  The committee may review all existing federal statutes, mandates and Executive orders for the purpose of determining their constitutionality. The committee may recommend for nullification existing federal statutes, mandates and Executive orders enacted before the effective date of this section.

E.  On the committee's recommendation for nullification, the legislature shall vote on whether to nullify the action within sixty days after the committee's recommendation.  Until the vote, the issue in question is of no effect.  The appropriate documentation reflecting the legislature's vote shall be documented in the journals of the respective houses.

F.  If the legislature votes by simple majority to nullify any federal statute, mandate or Executive order on the grounds of constitutionality, this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order.

G.  The committee shall 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.  The committee shall ensure that the jurisdiction of any cause of action between this State and the federal government regarding nullification of any federal legislation, mandate or executive order with the Supreme Court of the United States alone, as stated in Article III, section 2, United States Constitution.

Got that? The Arizona legislature, by majority vote, can declare any federal law or regulation unconstitutional and neither the state nor anyone in the state will have to obey it.  Oh, and that last part says that the legislature is to ensure that only the US Supreme Court can hear a challenge to a nullified law.

Section 2, which is much longer, is an attempt to explain just what the Constitution means and how it is to be interpreted.

What?  You think I'm making it up?  Here it is in its entirety.

The legislature finds and declares:

1.  The Tenth Amendment to the United States Constitution guarantees and reserves to the states or their people all powers not specifically granted to the federal government elsewhere in the Constitution as they were publicly understood at the time that the amendment was ratified on December 15, 1791, subject only to modification by duly ratified subsequent amendments to the United States constitution.  The guarantee of those powers is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

2.  As a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912, the Tenth Amendment to the United States Constitution guarantees to this state that, other than the enumerated powers expressly granted to the United States under Article I, section 8 of the United States Constitution, Congress and the federal government will not exercise any purported additional control over or commandeer rights belonging to this state or its people.

3.  Under the Tenth Amendment to the United States Constitution, the people and this state retain their exclusive power to regulate this state subject only to the Fourteenth Amendment's guarantee that the people and the state of Arizona exercise those sovereign powers pursuant to each citizen's lawful privileges or immunities and in compliance with the requirements of due process and equal protection of the law.

4.  The ninth amendment to the United States Constitution secures and reserves to the people of Arizona as against the federal government their natural rights to life, liberty and property as entailed by the traditional Anglo-American concept of ordered liberty and as secured by state law, including their rights as they were understood and secured by the law at the time the amendment was ratified on December 15, 1791, as well as their rights as they were understood and secured by the law in this state at the time the Arizona Constitution was adopted.  The guarantee of those rights is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

5.  At the time the United States Constitution was ratified on June 21, 1788, the sole and sovereign power to regulate the state business and affairs rested in the state legislature and has always been a compelling state concern and central to state sovereignty.  Accordingly, the public meaning and understanding of Article I, section 8, the "establishment clause" of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Further, the power to regulate commerce among the several states as delegated to the Congress in Article I, section 8, clause 3, United States Constitution, as understood at the time of the founding, was meant to empower Congress to regulate the buying and selling of products made by others, and sometimes land, associated finance and financial instruments and navigation and other carriage across state jurisdictional lines.  This power to regulate commerce does not include agriculture, manufacturing, mining, major crimes or land use, and does not include activities that merely substantially affect commerce.

6.  At the time the United States Constitution was ratified on June 21, 1788, the commerce clause was not meant or understood to authorize Congress or the federal judiciary to regulate the state courts in the matter of state substantive law or state judicial procedure.  This meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to the validity of religious sectarian or foreign law as being controlling or influential precedent, has never been modified by any duly ratified amendment to the United States Constitution.  Accordingly, the public meaning and understanding of Article I, section 8 and the Tenth Amendment of the United States Constitution is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Additionally, Article I, section 8, clause 18 of the United States Constitution, the "necessary and proper clause," is not a blank check that empowers the federal government to do anything it deems necessary or proper.  It is instead a limitation of power under the common law doctrine of principals and incidents that allows the Congress to exercise incidental powers.  There are two main conditions required for something to be incidental, and therefore, "necessary and proper", the law or power exercised must be directly applicable to the main, enumerated power and it must be "lesser" than the main power.

7.  At the time the United States Constitution was ratified on June 21, 1788, Article I, section 8, clause 1 of the United States Constitution, the "general welfare clause," did not empower the federal government with the ability to do anything it deems good.  It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are prescribed in Article I, section 8 of the Constitution of the United States. When James Madison was asked if this clause was a grant of power, he replied, "If not only the means but the objects are unlimited, the parchment (the Constitution) should be thrown into the fire at once."  Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States.  The Commerce Clause was not meant or understood to authorize Congress or the federal judiciary to establish religious sectarian or foreign statute or case law as controlling or influential precedent.  This meaning and understanding of Article I, section 8, the establishment clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to controlling or influential legal authority, has never been modified by any duly ratified amendment to the United States constitution.  Accordingly, the public meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in  1912.

8.  Accordingly, we affirm that neither the "Commerce Clause," the "general welfare clause" or the "necessary and proper clause" of the United States Constitution have ever been expanded, modified or amended and therefore, this state specifically rejects and denies any expanded authority that the federal government may attempt to enforce.

9.  The Congress and the federal government are denied the power to establish laws within this state that are repugnant and obtrusive to state law and to the people in this state.  They are restrained and confined in authority by the eighteen items as prescribed in Article I, section 8 of the United States Constitution.

10.  Congress and the federal government are denied the power to bind the states under foreign statute or case law other than those provisions duly ratified by the Congress as a treaty, so long as the treaty does not violate this state or the United States Constitution.

11.  Further, no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to preempt state legislation.

12.  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. 

Specific legislative findings about what the Constitution means and how it must be interpreted, understood, and applied. Oh, and paragraph 12 says the statute is a notice and demand which requires Congress and the federal government to do what Arizona tells them.

Of course, it's nonsense.

Much as it might wish otherwise, Arizona does not have the authority to determine which federal laws will apply within its borders.  And while Arizona courts can, in the first instance, determine whether federal laws are constitutional, they don't have the last word on the matter.  There isn't universal agreement that Marshall was right in Marbury when he declared the power of the federal courts.  But for 207 years that's been the controlling principle.  Arizona's going to have a tough time convincing the federal courts that it, not they, gets to determine the meaning of the Constitution.  Frankly, it's a secession bill.

Equally frankly, the South lost the Civil War.  Arizona just doesn't get to decide what laws apply.  Well, unless it secedes.

Sadly, Arizona isn't alone.

Well, maybe it's alone in the particulars of SB 1433.  (You'll notice that I'm treating it as if it's been enacted.  That's off in the future, though I rather expect that it will be - this is Arizona after all, self-identified as the state that's a gaping hole in the country, you know, the Grand Canyon State.)  But the general idea of states nullifying federal laws, that takes us to to the Repeal Amendment.

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Here's Eric Cantor, the House Majority Leader, quoted in a December NY Times article on the proposed amendment (which he supports)

Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives. Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.

SB 1433 really can't pass constitutional muster.  The Repeal Amendment is different, of course.  By definition, an amendment to the Constitution must be constitutional.

The good news is that even if enacted, the Repeal Amendment would likely have little real world consequence.  The Times, again, this time quoting Sanford Levinson, law prof at the University of Texas.

Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states.

That's surely true.  It's also true that the Amendment would have one powerful and potentially valuable consequence.  While state legislators are busy squabbling and posturing over whether this or that act of Congress is constitutional, they aren't inflicting any harm on the rest of us.  I mean, just think of all the bad state laws they won't have time to pass.

Like, say, SB 1433.

And then there's what Nick F, the Arizonan who directed my attention to SB 1433 said.

Astonishing. The Union will be better off without us.