Bills invoke states’ rights
Legislature could block federal laws, Shea says
Sun., Jan. 24, 2010
OLYMPIA – Conservative activists in Idaho and Washington are trying to force the federal government to keep out of issues such as guns, health care and 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 a state’s 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 Washington’s legislative session.
The 10th Amendment, which reserves to states any right not spelled out in the Constitution, is the basis for the bills, Shea 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 a state’s borders. That’s really the job of the courts, in precedents that stretch back to 1803, said Amy Kelley, who teaches constitutional law at Gonzaga University School of Law.
“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 or 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 from 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 as president.
“We want to lead the state out of recession. They want to lead the state out of the country,” Rep. Jeff Morris, D-Mount Vernon and House speaker pro tem, said of Shea’s legislation, which some Republicans call the Freedom Acts.
Some Republican leaders are co-sponsoring individual bills, but the GOP leadership said the bills are not a priority. Some members are passionate about state sovereignty issues, said Caucus Chairman Dan Kristiansen, of Snohomish, “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 emission 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 he 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 committee hearing 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.
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.
If passed, these “states’ rights” laws would be ignored by the federal government or thrown out by the federal courts, said Hugh Spitzer, a constitutional scholar who teaches at University of Washington School of Law. 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 is 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 in arguing that the federal government should recognize a same sex marriage in a state that has passed such a law.
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