In March of 2011, Governor Herbert of Utah signed House Bill 76. This law provides additional funding for the state’s Constitutional Defense Commission and give it the authority to try negotiation and mediation before taking the federal government to court over federal law that has been deemed unconstitutional in regard to powers given to the federal government by the U.S. Constitution. This gives Utah state legislators a clear path to challenge unconstitutional federal law and, hopefully, sends a message to federal lawmakers.
This year, along with many other pending bills that challenge federal authority in the state, Arizona has introduced SB 1358 (neutralization; federal laws). This short piece of legislation packs a powerful punch. Like the Utah legislation, if signed into law, the bill will allow for a committee (the Joint Legislative Committee on Neutralization of Federal Laws) to be established. This committee will not only review new federal legislation (within 30 days of its passing), but also review all existing federal statutes, mandates, and executive orders for the purpose of determining their constitutionality, and can recommend them for neutralization as well. Unlike the Utah law, however, after committee recommendation, a simple majority vote by the state legislature on the grounds of constitutionality is all that is necessary for neutralization. If that occurs, the bill mandates that the state and its citizens “shall not recognize or be obligated to live under the statute, mandate or executive order.”
Senator Lori Klein, who drafted the bill, stated, “We have in Washington a particularly overreaching administration as well as regulations that are coming out of agencies that are not even mandated from Congress. The states have a right to stand up to these kinds of onerous regulations.” The bill itself contains strong wording in regard to its purpose, “This act serves as a notice and demand to the government to cease and desist all activities outside of the scope of their constitutionally designated powers that diminishes the balance of powers as established.”
If we have learned anything over the past few decades, it is precisely that once the federal government “takes control” in a particular area, whether it be via a law, mandate, or executive order, it is nearly impossible to have the action reversed. Therefore, Senator Klein isn’t naive when it comes to the federal government simply accepting any neutralization decision made by the state. She knows that any such decision will be challenged. However, she is steadfast in her position that only a Supreme Court ruling will be acknowledged by the state of Arizona. Unfortunately, the Supreme Court has not been generous with rulings for the states in regard to a clear division of state and federal authority, leaving many wondering what has happened to our system of checks and balances. Who is safeguarding the nature and intent of our Constitution?
The final paragraphs of the bill’s purpose and declarations point to the Ninth and Tenth Amendments which have become the center of discussion across the nation as the federal government continues to blur its lines of authority with each new administration. The bill states: “Under the tenth amendment, the people and state of Arizona retain their exclusive power to regulate the state of Arizona, subject only to the fourteenth amendment’s guarantee that the people and state of Arizona shall exercise such sovereign power in accordance with each citizen’s lawful privileges or immunities, and in compliance with the requirements of due process and equal protection of the law.
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 conception of ordered liberty and as secured by state law, including their rights as they were understood and secured by the law at the time that the amendment was ratified on December 15, 1791, as well as their rights as they were understood and secured by the law in the state of Arizona at the time the Arizona constitution was adopted. The people and this state hereby proclaim that the guarantee of those rights is a matter of compact between this state and people of Arizona and the United States as of the time that Arizona was admitted to statehood in 1912.”
What opponents of nullification do not understand is that our founders never intended for unconstitutional federal law to be forced upon the people of the several states. Thomas Jefferson is very clear in the following statement, “I ask for no straining of words against the general government, nor yet against the states. I believe the states can best govern our home concerns and the general government our foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the Constitution for the limitation of both; and never to see all offices transferred to Washington” (The Writings of Thomas Jefferson; 1854)
It appears that the future of our republic rests in each state’s ability to take a strong stand against federal encroachment and the current Supreme Court’s obligation to uphold this ruling from 1911, “Among the powers of the state not surrendered– which remain with the state– is the power to so regulate the relative rights and duties of all within its jurisdiction as to guard the public morals, the public safety, and the public health, as well as to promote the public convenience and the common good” (R.J. HOUSE v JOEL B. MAYES, Marshal of Jackson County, Missouri, and Elliott W. Major, Attorney General ).