Spokane7
46°
January 24, 2010 in City
Bills invoke states’ rights
Legislature could block federal laws, Shea says
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.
Initiative filed to create public charter schools 
idgrl on January 24 at 6:43 a.m.
The constitution allows for ammendment. The states need to call a constitutional convention and draft limitations to the federal commerce clause as it is applied to the states. That has precedent over the courts interpretation allowing for the expantion of federal power. Other areas could be limiting eminent domain which has morphed into taking of private property and giving it to private persons; Limiting the federal income tax so the feds are not controlling money as a “pass through” to the states. As we can see from Nebraska, the federal government is not a good steward of how to flow money to the states.
If you want to limit the federal governments power, you have to limit its checkbook.
Liberty_Bell on January 24 at 6:59 a.m.
“Thus was established the rebel government of Texas.”
Lincoln’s Chief Justice Chase; 74 U.S. 700
Before, indeed, these changes in the constitution had been [p724] completed, the officers of the State had been required to appear before the committee and take an oath of allegiance to the Confederate States.
The governor and secretary of state, refusing to comply, were summarily ejected from office.
The members of the legislature, which had also adjourned and reassembled on the 18th of March, were more compliant. They took the oath and proceeded, on the 8th of April, to provide by law for the choice of electors of president and vice-president of the Confederate States.
The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.
In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.
The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States.
The Union of the States never was a purely artificial and [p725] arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
Liberty_Bell on January 24 at 7:14 a.m.
Of course when you flunk, U.S. History, you Flunk U.S. Law School? 101, 1803
Chief Justice Marshall, fought with George Washington, spent the winter at Valley Forge, for those left behind!
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
Liberty_Bell on January 24 at 7:35 a.m.
A Democrat, in disguise, who also flunked the Republican Principal’s of the Republican Party, July 4th 1776?
Rewriting the same! 1868!
“aid and comfort to the enemies thereof”
“assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States”
Who were those democrats, running for Texas, Jefferson Davis, caught in a dress?
Text Fourteenth Amendment, simplyifing the Tenth
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
“The republic of letters is unaffected by the wars of geographical divisions of the earth.”
Thomas Jefferson(R), September 11, 1811
leekinny on January 24 at 8:10 a.m.
This is settled law. No one in this administration is after your guns. Why would a state want to treat it’s people poorly? I suppose they could do without highway funds.
opiemuyo on January 24 at 1:47 p.m.
^^Said the sheep that gave up his rights.
Bill_Walker on January 24 at 7:45 p.m.
While nullification advocates may try to suggest otherwise, the fact is the last time states believed they had the right to nullify federal laws or the federal Constitution it ultimately led to civil war costing this country 600,000 American lives. If pressed these advocates can’t even provide a single court ruling supporting their decision. As to their legislation regarding gun production, a simple Google search reveals their intent to test their theory of state supremacy over federal law in a FEDERAL lawsuit.
It should be obvious to all that by submitting the decision of state supremacy to a federal court the entire nullification theory falls apart as the very act of submission implies the federal government not the state have the final say in the issue. If these people were true to their belief, they would simply submit it to a state court and upon getting a favorable ruling from a state court maintain that is the end of the matter. However given that no state or federal court has ever held this point, it is likely they would not win even in state court.
The fact is the movement is bogus. The only viable alternative to excessive federal government, and there is no question the federal government is excessive, is by the amendment process, specifically an Article V Convention. Amendments work and have a proven, legal and constitutional history of doing so as well as have thousands of rulings by the courts both federal and state to support their validity.
The states have already taken the necessary step to force a convention call by Congress. The Congressional Record shows all 50 states have submitted 750 applications for an Article V Convention call, some 20 times the number required. Congress is mandated to call a convention if 34 states submit 34 applications. The photographic copies of the pages of the Record containing the applications can be read at www.foavc.org.
So far Congress has refused to obey the Constitution and call a convention as it is required to do. People should demand of their members of Congress to explain why they feel they have the right to veto the Constitution.
builder_or_pyramids on January 25 at 4:29 p.m.
Liberty_Bell, thank you for the laugh.
“It is emphatically the province and duty of the judicial department to say what the law is.”
That is a slanting on word usage that has confused so many people calling themselves average in this country. That phrasing would only be used by a public school teacher or someone who is repeating a sales pitch, in my opinion.
I only know of the four branches of government; executive, legislative, judicial and jury. If you are not familiar with the 4th branch, I would like you read up on the subject. It is quit interesting.
It is the duty of the judicial branch to interpret the law (Jr. High civ. with greater detail in first year law 101.) If you don’t like the definition below. I use Black’s Law personally. This is a basic definition however. And remember, there is an appeals process. Even the Supreme Court will over-turn earlier opinions. And you know what they say about opinions.
I did enjoy the comment. Hope you enjoyed mine.
Main Entry: in·ter·pret
Pronunciation: \in-ˈtər-prət, -pət\
Function: verb
Etymology: Middle English, from Anglo-French & Latin; Anglo-French interpreter, from Latin interpretari, from interpret-, interpres agent, negotiator, interpreter
Date: 14th century
transitive verb
1 : to explain or tell the meaning of : present in understandable terms <interpret dreams=”“> <needed help=”” interpreting=”” the=”” results=”“>
2 : to conceive in the light of individual belief, judgment, or circumstance : construe <interpret a=”” contract=”“>
3 : to represent by means of art : bring to realization by performance or direction <interprets a=”“ role=”“>
AppleMaggot on January 26 at 1:07 a.m.
‘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.’
Not a state option? Didn’t the states create the federal government in the first place? Since they created the compact, are they not the final arbiters on the limits of the central government’s power? Was that authority not explicit in the 10th Amendment? To wit, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” Does this amendment not imply that a state has the right to nullify any federal law which it deems unconstitutional?
Ms Kelley should go back further than Marshall’s imperial judiciary in 1803 and consider the Kentucky and Virginia Resolutions of the late 1790s, where Madison & Jefferson clearly make the case for nullification and state sovereignty.
shanusmaximus on January 26 at 10:15 a.m.
I have had it with the Feds and their old blackmail game of withholding Fed. Highway funds every time a State strikes out on it’s own against something the Feds dislike. Or that they give funding out for things that they do like. This is plain and simple bribery or blackmail. I think we need a law that states the Fed. government cannot use NECESSARY funding for FEDERAL infrastructure as a punishment or a reward. If we did this, I think quite a bit could be righted as far as Fed vs. State…
robchase on January 27 at 4:53 a.m.
We need to re-read the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”
In conjuction with Section 1 of the WA State Constitution:
“SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”
Matt Shea has every right to introduce 10th Amendment legislation in Olympia because he represents the people of the 4th District of WA. The people also have a right to introduce initiatives that dovetail that legislation.
How can Gonzaga law professor Amy Kelley say “What the U.S. Constitution ? means is not a state option,” The states created the Federal Government and are a check on the power of the same.