Many bills recently introduced in the Arizona Legislature which try to exempt the state from federal law violate one of the most basic principles of the American Constitution: The federal government and federal law are supreme over the states.
The various anti-federal bills being concocted by the Russell Pearce Republicans are breathtaking in their disregard of this principle. Though the bills are cloaked in the language of the Constitution, these neo-secessionist bills are trying to challenge the very premise that we can have a Constitution of the United States of America.
The bills are tied together only in their vehement attempts to thwart the federal government from being able to carry out its important tasks. House Bill 2077 proposes to require federal agents to pay local sheriffs to register their presence when they are conducting a mission in the state. SB 1545 declares that a nuclear fuel rod manufactured in Arizona “is not subject to federal law or federal licensing, certification, registration or other federal qualification or other requirements.” SB 1393 seeks to protect our “right” to the “harmless emission of anthropogenic carbon dioxide or other greenhouse substances” by making it a crime for the federal government to regulate their emissions in Arizona. HB 2313 requires the state attorney general to file eminent-domain actions on property possessed by the U.S. government if it “increases the ability of this state to generate revenue.”
Judged simply on their merits, these bills are nonsense. FBI agents need to be able to enforce federal laws without navigating a bureaucracy of registering with local sheriffs. A nuclear plant in Arizona is subject to the guidelines set by the United States government. Greenhouse gases are certainly not “harmless,” and there is no “right” to produce them without limit. And the last thing Arizona needs from its attorney general is an attempt to turn the Grand Canyon into a gargantuan uranium mine.
But beyond their lack of wisdom, each of these bills would be immediately and unquestionably declared unconstitutional. Each violates Article VI of the Constitution, which provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
This, of course, is not the first time that states have tried this gambit. In the early 19th century, Sen. John Calhoun argued that states could interpose their sovereignty between Congress and the people to prevent the abolition of slavery. In the 1950s, opposition to desegregation was phrased in terms of states’ rights, including claims by Southern governors that they could disregard desegregation orders.
The proponents of these bills know that there is no chance that any court would uphold them. But Republican legislators are seeking to score political points by passing bills whose only job is to appeal to the far right-wing. These bills are not designed to address a real problem; they are designed to get their sponsors an invitation to The O’Reilly Factor. Riding on the coattails of the SB 1070 fiasco, these Republican legislators want to find another case against the federal government that will land them in the spotlight.
Even though the bills are based on fictional legal principles, they will have real costs for Arizona’s taxpayers. Each bill has to be created on the taxpayers’ dime. If one of these bills winds up in court, the taxpayer will end up paying thousands of dollars in lawyers’ fees. Even more troubling, these bills are sending a signal to major businesses that Arizona doesn’t want their jobs. Businesses don’t want to become an innocent bystander in a turf war between the state and federal governments, and they will stay clear of Arizona so long as these hare-brained schemes keep coming out of the Legislature.
The morphing of the GOP into a movement that opposes the necessary and proper role of the United States government would send Abraham Lincoln turning in his grave. We shouldn’t be debating a bizarre set of neo-secessionist bills in the 21st century.
This article appears in Apr 7-13, 2011.
Thank you for some common sense, Dean Chemerinski. We’re in short supply here in Arizona of late.
One need read only the very first paragraph above to realize the authors are operating under a faulty premise:
” The federal government and federal law are supreme over the states.”
This is true only when the federal government is acting pursuant to the authority delegated to it by the United States Constitution, and federal law enacted by Congress is founded on the subject matter jurisdiction provided by the United States Constitution.
There is, after all, a second “Supremacy Clause”: “The powers not delegated to the United States, not prohibited by it to the States, are reserved to the States respectively, or to the people.” It is called the Tenth Amendment, gentlemen.
Nullification, by the States, of unConstitutional federal actions and federal law, is the rightful remedy. Thomas Jefferson said so in the Kentucky Resolutions and James Madison said so in the Virginia Resolutions. Thomas Jefferson:
“… that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it… “
Mssrs cherminsky and Kleiner would like to pull the wool over the eyes of the people, and we aren’t having any, thank you. Arizona is fully within its rights, as is every State, to nullify usurped authority by the federal government, and it is well past time we should do so.
I didn’t realize that the Kentucky and Virginia Resolutions had the force of law, nor that they trumped a couple of hundred years of jurisprudence. Guess I need to get the wool off my eyes….
I loved living in Arizona, but once it became apparent to me that Arpaio, Brewer, and Pierce wanted to take the state in a direction that was against my core beliefs, I moved away. How much easier is it for a prospective business to bypass the potential problems Brewer-ing in the state?
Although it is true that Article VI of the Constitution provides that the “Constitution, and laws and treaties made pursuant to it, are the supreme law of the land,” there are no provisions within Article VI or anywhere else in the Constitution granting the federal government the power to establish the FBI or any other unconstitutional agency.
The key word here is pursuant. In other words, the laws and treaties must first be pursuant to the Constitution. The laws and treaties must be legal under under the Constitution. In other words, the “Supremacy Clause” is effective only when the federal government is acting pursuant to the authority delegated to it by the United States Constitution, and federal laws enacted by Congress are founded on the delegated authority provided by the United States Constitution.
I suggest Chemerinsky and Kleiner read the Constitution before making such ridiculous claims.
Teh crazy is apparent right here in the comments section. Of course, Arizonans know better than constitutional scholars. The education system is so advanced here, that knowledge just flows into the headless.