OLYMPIA – Conservative activists in Washington and Idaho are trying to force the federal government to “keep out” on issues ranging from guns to health care to the environment.
Through legislation and initiatives, people aligned with what’s variously known as the 10th Amendment or State Sovereignty movement are trying to pass state laws that limit what the federal government can do within its borders.
“Government closest to the people is best able to solve the problems,” said State Rep. Matt Shea, R-Greenacres, who introduced a series of “sovereignty” bills the first week of the session.
The 10th Amendment, which reserves to states any right not spelled out in the Constitution, is the basis for the bills, he said. Language for much of the legislation came from the 10th Amendment Center, which supports and tracks efforts to strengthen states’ rights.
But legal scholars question such efforts to have the Legislature set limits on Congress or to interpret what the U.S. Constitution means within their borders. That’s really the job of the courts, in precedents that stretch back to 1803, Amy Kelley, who teaches constitutional law at Gonzaga Law School, said.
“What the U.S. Constitution means is not a state option,” Kelley said.
Under bills introduced by Shea and other Republicans, Washington
wouldn’t have to follow any federal mandates on health care reform,
obey any “cap and trade” rulings that govern greenhouse gases unless
the Legislature approves them.
The federal government couldn’t regulate any firearm that was manufactured, sold and only used in Washington. Federal law enforcement agents would need permission of a county sheriff before arresting anyone. Any legislation Congress passed would have to state the constitutional authority for any law.
Democrats who control the Legislature have yet to schedule any of Shea’s bills for a hearing, and some describe it as part of a “Tea Party Agenda”, a reference to the conservative anti-tax, smaller government movement that has gained steam since Barack Obama’s election.
“We want to lead the state out of recession. They want to lead the state out of the country,” Rep. Jeff Morris, House speaker pro-tem, said of Shea’s legislation, which some Republicans call the Freedom Acts.
Some Republican leaders are cosponsoring individual bills, but the GOP leadership said the bills are not a priority. Some members are passionate about state sovereignty issues, Caucus Chairman Dan Kristiansen of Snohomish said, “but it’s not a party position or a caucus position.”
Rep. Kevin Parker, R-Spokane, signed on to the bill to ban any greenhouse gas emissions regulations because he sees them as “a major job killer.” Rep. Joel Kretz, R-Wauconda, signed on to several because of concerns in his northeast Washington district of too much federal intrusion but doubts the bills will pass in a session devoted mainly to budget problems.
An effort to bring two of the bills immediately to a floor debate without even a hearing in a committee was defeated in the first week of the session on a party-line vote. Shea conceded that voting on bills without a hearing is unusual, but he argued the measures on blocking health care and environment rules are so important they warranted special treatment.
Chris Bass, a Liberty Lake resident who was active in the Ron Paul presidential campaign, filed eight initiatives on many of the same topics, some with nearly identical language, a few days after Shea’s bills were filed.
A bill has already been introduced in
the Idaho Senate by Sen. Jim Clark, R-Hayden Lake, to block enforcement
of any national health care rules. Rep. Dick Harwood, R-St. Maries,
plans to introduce a bill that would forbid the federal government from
regulating any firearm built, sold and used solely in Idaho.
If passed, these “states’ rights” laws would be ignored by the federal government or thrown out by the federal courts, Hugh Spitzer, a constitutional scholar who teaches at University of Washington Law School. Some are an attempt at nullification, an argument that states can nullify federal laws with which they disagree. Clark’s bill in Idaho is even called health care nullification.
The nullification argument stretches back to the beginning of the nation, Spitzer said. In the mid 1800s, nullification led to secession and the Civil War. In the mid 1900s, some states tried to nullify federal segregation rules, and lost in the U.S. Supreme Court. There’s no doubt that Congress is limited in what it can have the states do, said Spitzer, who considers himself a states’ rights advocate. Usually, it “bribes” the states by giving them money to do something or threatening to take it away if they won’t.
States’ rights are not strictly the province of the conservatives, he
added. Liberals tend to cite states’ rights arguments in clashes
between federal drug laws and state “medical marijuana” statutes, or
that the federal government should recognize a same sex marriage in a
state that has passed such a law.The Washington and Idaho firearms proposals are patterned after a law enacted last year in Montana.
Gary Marbut, president of the Montana Shooting Sports Association and drafter of the Firearms Freedom Act, said Tennessee has passed a similar law, and 19 states are considering such legislation: “There’s this great wave of discontent. The Firearms Freedom Act was the first to catch that wave.”
He shies away from the term nullification, although he acknowledges the dictionary definition of the word applies, and disputes critics suggestion that this is really secessionism, which was settled by the Civil War.
“Nullification has gotten a rap, like ‘militia,’” he said. “It’s really that the federal government is seceding from its proper role as servant. Montana is saying to the other states, get your creature on a leash.”
Harwood, too, sees it as pushing back against the federal government, not seceding from the nation: “There’s no such thing secession. There’s nowhere to go.”