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Eye On Boise

House kills nullification bill on 29-40 vote, after extensive debate

After much debate, the House has voted 29-40 on HB 461, Rep. Paul Shepherd’s nullification bill, killing it. You can read my full story here at spokesman.com. Here’s how the vote broke down:

Voting yes: Reps. Armstrong, Barbieri, Boyle, Crane, DeMordaunt, Dixon, Ehardt, Gestrin, Giddings, Hanks, Harris, Holtzclaw, Kingsley, Loertscher, Mendive, Miller, Monks, Moon, Moyle, Nate, Palmer, Perry, Scott, Shepherd, Thompson, VanderWoude, Wagoner, Zito and Zollinger.

Voting no: Reps. Amador, Anderson, Anderst, Bedke, Bell, Blanksma, Burtenshaw, Chaney, Cheatham, Chew, Clow, Collins, Dayley, Erpelding, Gannon, Gibbs, Hartgen, Horman, Kauffman, Kerby, King, Kloc(Tway), Luker, Malek(Patano), Manwaring, McCrostie, McDonald, Packer, Raybould, Redman, Rubel, Smith, Stevenson, Syme, Toone, Troy, VanOrden, Wintrow, Wood, and Youngblood.

Rep. Ilana Rubel, D-Boise, the House assistant majority leader and a Harvard-educated attorney, noted that an Idaho Attorney General’s opinion found the bill wouldn’t withstand a court challenge, and asked Shepherd, R-Riggins, why his bill estimated that it would have no fiscal impact, if the state would have to defend it in court.

Shepherd said he thought the Attorney General “misunderstands” the bill, saying, “He didn’t address what our checks and balances responsibility is. … So it just don’t seem right to me that we just roll over, they make a decision we think is very wrong, we just roll over and go on to something else. … I think it is important that we stand up and we don’t just roll over. … I can’t speak to the cost of defending that.”

Rubel pointed to a number of problems in the bill, including that it “creates a very serious due process problem for our state officials – it puts them in a totally untenable position, whereby they have to choose between following federal law and state law, both of which they are actually compelled to do in many cases under their oaths to the Constitution.” She said, “It’s terribly unfair to our officials to put them in a position where they could go to jail for doing their jobs.”

Further, Rubel said, “We are the United States of America. There’s something to that United. ... There is real power that comes from being united and from having a consistent system of laws that applies across our nation.  We are not the independent states of America, we are not the states of America that may occasionally collaborate as they see fit. By being united and having the supremacy clause in effect for hundreds of years, it has led us to dominate the world and become a major global superpower that we would not be if we didn’t adhere to the supremacy clause. We’ve won major wars by having centralized direction. Eisenhower didn’t say, ‘Go land on Omaha beach unless your state legislature says not to.’ We have operated as a singular nation, and this seeks to undermine that in a very fundamental way that I think is very dangerous.”

She added, “I would just put to you, we have enough real problems to address. We have got problems with our schools, we’ve got problems with our infrastructure and our health care, we don’t need to re-litigate the civil war for really no good reason and in a manner that we know is going to inflict very serious costs on our taxpayers.”

Rep. Christy Zito, R-Hammett, spoke in favor of the bill. “What this legislation will do is it will send a message that the Legislature of the state of Idaho is willing to stand for its citizens. That the Legislature of the state of Idaho understands that we are 50 sovereign states that have entered into a contract with a federal government that has been provided to provide certain limited services to the people. And I just support this legislation, I feel like it’s a good thing for us to do for the people of our state.”

Rep. Stephen Hartgen, R-Twin Falls, told the House, “I would suggest that we spend a little bit of time at some point in our legislative careers looking at the history of the United States. In the 1850s, a number of states in the south made essentially a nullification argument that they didn’t have to follow the Consitution as it was enacted for … all the states. They made various arguments ranging from nullification, and some went further to use the word secession. That debate was resolved in a bloody civil war that cost over 600,000 American lives and another 3 million wounded.”

Hartgen said he, too, disagrees with some Supreme Court decisions and federal directions, but he said the Legislature has done a good job “exercising pushback” through more appropriate means.

Pointing again to nullification, secession and the Civil War, he said, “We know how that ended. I would urge us here to exercise some historical understanding and caution.”

Rep. Neil Anderson, R-Blackfoot, said, “Our forefathers I believe set up a system of balances and checks, and the Supreme Court was named the Supreme Court for a reason, and the judicial branch was created for a reason. I think that we need to be supportive of those things and work within the system to make it better.”

Rep. Vito Barbieri, R-Dalton Gardens, said, “What’s the federal government doing about marijuana laws in some of these states? We know that’s not only against federal policy, it’s against federal law. We have nullification there.”

He said, “There is dysfunction in the current federal system. If a state itself cannot stand alone and begin to tell the federal government there are going to be repercussions, the Supreme Court is NOT the last arbiter of what is constitutional or is not constitutional, the states HAVE a say in that. If states cannot individually begin to stand and address these issues, then when will it happen?”

Rep. Bryan Zollinger, R-Idaho Falls, said, “The only unfortunate thing about this bill is that we have to do this in the first place.” He declared, “The United States Constitution controls certain limited things, certain limited powers. We have the right as a state to nullify as a state any law that isn’t one of those limited powers. And we haven’t exercised that right very often as a state.”

He added, “I think we win this. … I do think we would survive any legal challenges.”

Rep. Mat Erpelding, D-Boise, the House minority leader, said, “Idaho is a state of a union from a Constitution written by the people. This idea that states are superior to the U.S. Constitution has been debunked not for 150 years, it’s been debunked  for 200 years. Voting for this does nothing except for expose our state to legal challenges. And being a fiscal conservative and all, we don’t want to put a bunch of money into our constitutional defense fund unless we have to.”

In his closing debate, Shepherd said, “Our Pledge of Allegiance we all say, but do we think in-depth into the Pledge of Allegiance? This republic that we believe, in that we’re going to uphold and preserve, this one nation under God?  Look at the rulings that’s went up against the Bible, and how many scriptures have been canceled on the prayer, on Roe vs. Wade, on the issue of gay marriage. There’s numerous scriptures now canceled by the Supreme Court. So I just think we have to stand up, we have to quit rolling over, and we have to take a stand.”

Shepherd introduced the same bill last year; it died without a hearing. This year, the House State Affairs Committee passed it with just four “no” votes, sending it to the full House and leading to today’s debate and vote.



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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