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Idaho lawmakers advance federal nullification bill

Rep. Paul Shepherd
Rep. Paul Shepherd

A House committee today voted in favor of Rep. Paul Shepherd’s bill declaring that Idaho lawmakers can void federal laws and court decisions, and setting up a process for passing legislative bills to do so.

Just four members of the House State Affairs Committee voted against the bill, HB 461, which now moves to the full House.

Shepherd, R-Riggins, told the committee that he believes lots of U.S. Supreme Court decisions have violated the Constitution, including the one-man, one-vote ruling; citizenship for those born in the United States; and EPA rules on things like suction dredge mining.

“They really hold the miners down, and that to me is strictly illegal,” Shepherd said. “I think we desperately need a way to call ‘em out when they’re unconstitutional. … Why would you need a pollution permit when there’s no pollution?”

On citizenship for native-born Americans, he said, “People sneak in, have babies and then get our taxpayer money. ... That was very clear when they made that rule was about the slavery issue. … That was only people that belong to this country, lived on this land. … It’s illegal when they let anyone sneak in and get born here.” He added, “That’s totally unconstitutional the way I read it.”

Shepherd also said he believes the one-man, one-vote rule is wrong, because “counties are supposed to have protection for small minorities in the small-populated area.” He said, “I’m pretty sure they’re illegal.”

Rep. Lynn Luker, R-Boise, an attorney, asked Shepherd how his bill squares with Article 3, Section 2 of the U.S. Constitution, which “actually gives that court the jurisdiction to decide that.” Shepherd, a sawmill owner, said, “I agree there’s this big controversy maybe on interpretation. But that’s why it takes 50 in our interpretation to overrule five. I think that’s only fair. We shouldn’t have to bow down to five (Supreme Court justices) when there’s 50 of us that say they’re wrong.”

The U.S. Supreme Court actually has nine justices; the Idaho Supreme Court has five justices.

Shepherd said, “The way it is, we just tend to go, ‘Uh oh, the Supreme Court made a ruling, we gotta roll with it.’”

He added, “I think that it’s obvious that we haven’t used the power that we do have very well, and I think it’s because it’s not in statute and it’s not laid out. And I think this goes one step farther, because then if we know it’s going to mean something then we might really do it. But when we know it doesn’t mean anything, we gotta roll over if the Supreme Court disagrees, when they’re illegal, we need the power to say it’s void in Idaho.”

Rep. Heather Scott, R-Blanchard, asked Shepherd, “So let’s just say that this body determines that the EPA doesn’t have the authority to operate at a federal level and we decide to get rid of that. What dos that process look like … or how do you follow through on that, I guess, once we’ve made that decision?”

Shepherd responded, “There’s several things that happen. One, you don’t take the money, if they provide any money – that voids any money from the feds on that subject. Our sheriffs, whoever, just don’t allow anyone to come and bother anybody, because it’s void in Idaho.” He added with a chuckle, “Our Idaho County sheriff already has done a little of that in the mining rules up on the Salmon River.”

Rep. Christy Zito, R-Hammett, asked, “So in theory, then, other than to withdraw federal funding … what, other than withholding federal funding can the federal government do to a state that declares its sovereignty in an area like that?”

Shepherd said, “I guess I can’t speak to that. We’ve gotta be brave enough to take the step and see what we can do. I can’t tell you the outcome. I think we can win – they’re letting ‘em have drugs, they’re letting ‘em have sanctuary cities. I think we can have some freedom and go by the Constitution, but if we can’t, we’ve gotta be forceful and say, ‘Hey, we’re going by the Constitution, I’m sorry.’ And I just think it’s time we step up and do something like that.”

Luker asked, “What’s keeping you or me from bringing in a bill today to cut acceptance of all federal funds from the EPA?”

“Probably nothing,” Shepherd said. “But we haven’t done that. And,” he said with a chuckle, “I think with this process in statute, we’d be more apt to do it.”

Rep. Steven Harris, R-Meridian, moved to approve the bill. “This is very useful language to have in statute, the intent is appropriate, the procedures are great,” Harris said. “It’s nice to have something in statute that says what we think, certainly.”

Rep. Heather Scott, R-Blanchard, said, “I’ve heard so many times from people in this body, ‘It’s the law of the land’ or ‘The supreme Court has said this, that or the other.’ I think sometimes we need a kick in the butt from the citizens to do the right thing.”

Rep. Christy Zito, R-Hammett, said she believes the U.S. Supreme Court can’t overrule the Idaho Constitution’s prohibition on same-sex marriage, which was overturned by a federal court in 2014. “I’m going to support this legislation because I feel like if nothing else it will send a strong message that legislators in the state of Idaho are being more and more prepared to take that stand to defend what is correct,” she said.

The only “no” votes came from Reps. Luker; Dustin Manwaring, R-Pocatello; Elaine  Smith, D-Pocatello; and Margie Gannon, who is filling in for Rep. Paulette Jordan, D-Plummer.

Shepherd introduced the same bill last year; it died without a hearing. A review by Attorney General Lawrence Wasden's office said the bill's active obstruction of federal law would likely not hold up in court.



Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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