How does it work?
This constitutional amendment provides a mechanism for the state to recognize a specific federal regulation or law to be an overreach of federal powers. This could be initiated by a 1) ballot measure or 2) vote of the legislature and governor. Upon this determination, the state would withhold state financial resources and personnel from enforcement of such federal action. The federal government would be free to enforce the action with its own personnel (and money) and the state may still pursue relief from the court system.
Any use of this process is limited to areas that comply with the US and Arizona Constitutions (e.g. Arizona could not prevent the national guard from being federalized and could not withhold resources needed to support Brown vs. Board of Education).
The referral was prepared by Clint Bolick of the Goldwater Institute and passed by the Arizona legislature with bi-partisan support for the November 2014 ballot.
Why do we need this?
The state cannot afford to fund every mandate and unfunded program Washington imposes on us. While we support electing the right US representatives, strongly petitioning them, and ultimately using the court system...the best defense is often to force the burden of enforcement back to the federal government.
Can't the legislature do this without a ballot measure?
A ballot measure is the only way to amend the Arizona Constitution and so it is the only way to make this mechanism applicable to all aspects of the state. Without a constitutional amendment, the courts have exempted various arms of the executive branch (Governors office, Attorney General...), chartered cities (Phoenix, Tucson…), and quasi governmental entities (Department of Environmental Quality…). Many federal programs currently partner directly with these entities and completely bypass any legislative overview.
Is it Constitutional?
The Supreme Court has repeatedly ruled that while the federal government may 1) execute its own laws and 2) prevent the States from executing laws contrary to federal laws (or the US Constitution), the federal government may not coerce the states into executing federal laws (Printz v. United States (1997), New York v. United States (1992), NFIB v. Sebelius (2012)).
Is this just Nullification/Succession/Refighting the Civil War?
No. Nullification involves making a federal law "Null and Void" in the state and unenforceable by the federal or state government. The federal government continues to have the right to enforce its laws and the state can still challenge their constitutionality in court. This act merely creates an orderly mechanism for the state to execute an existing power of determining where it can utilize its resources. This is a very moderate and overdue measure. By having States exercise their constitutional rights to compel the federal government to live within its constitutional boundaries, everyone lives by the same rules and society becomes much more harmonious.
Where could the mechanism be used?
The sponsors drafted the bill to focus on areas that increase the individual liberties of Arizona citizens. We expect to use it in the short term to mitigate some of the more destructive elements of the Affordable Healthcare Act ("ObamaCare"), create greater transparency with Child Protective Services, and preserve second amendment and property rights.
Won't the federal government take away our highway money?
The federal government provides various grants to the states for specific purposes. Each is tied to the specific program and the government is precluded from using a "broad hammer" to pull back funding from one or more programs for reasons unrelated to those specific programs. The Supreme Court further restricted the federal government's ability to threaten the states financially in "ObamaCare" NFIB v. Sebelius (2012).
It is conceivable that Arizona may chose to withhold cooperation from programs in which federal grants are attached. Many of these programs cost the state more than the federal contribution provides for, leading to unfunded and underfunded mandates. In any case, the sponsors recognize that federal funding is one of many valid considerations and have accordingly created a high threshold to trigger this mechanism.
Would Arizona be alone in this effort?
Over 35 states have recently taken measures to push back against federal overreach. These issues spanned across the political spectrum from healthcare, gun rights, medical marijuana, nationalized identification, TSA searches, and voter ID. So far, 34 states have rejected the ACA's state exchange provisions.
Arizona's legislature is known for doing some wacky things. How can we trust our legislature to be thoughtful and deliberate?
The same argument can be made about the United States Congress. In addition to the state legislature's approval, we also require the governor's signature as an added check and balance to our own process. By and large, most people agree that our federal government isn't in touch with what the people of our country want. Congress isn't currently accountable to the states. Our measure will incentivize Congress and federal bureaucracies to contemplate how states will respond to unconstitutional federal actions.
Won't this make Arizona look crazier than it already looks?
Although opponents will attempt to mischaracterize its purpose, this measure is simply an organization of a power that is already recognized by the Supreme Court. It is less controversial than a governor simply declaring that they won't comply with the ACA. Most importantly, it will allow 3 million people in Arizona to express themselves on federal issues at the ballot box, which is hard to marginalize. This is designed as model legislation for other states.
What checks and balances would the People have on the states themselves?
This mechanism does not provide the state any new or "affirmative" powers. It simply organizes an existing power, recognized by the Supreme Court, into a thoughtful process. Any use of this mechanism is specifically limited to efforts consistent with the US and Arizona Constitutions and subject to court review. There are numerous items that a state must consider before "going too far". The state has to take all of these natural checks into account when considering in its decisions. The federal government is virtually immune from all of these.
- The states collect certain monies from the federal government.
- State elected representatives are much more accountable to their citizens than their federal counterparts.
- They can be removed much easier through elections and recalls.
- Legislative actions can be reviewed by the State Supreme Court.
- States adopting bad laws lose their citizens and tax base.
- States are much more sensitive to boycotts and social pressure than the federal government.
- If the disputed issue is critical, the federal government or other states can propose a constitutional amendment to resolve the issue.
Whether you are legally correct, or not, won't this be stricken down by the courts?
As an amendment to the Arizona Constitution, this has been crafted to "stay on the books" regardless of any court decision. It has also been designed to avoid judicial involvement until the mechanism is actually triggered. Although Supreme Court precedent backs the use of this mechanism, this additional time allows for other states to adopt similar legislation. It also provides time for states to pick issues that have more political backing.
While the federal government does hold certain financial leverage over individual states, its ability to force its will on multiple states is more limited.
Won't this create chaos if every state can choose which federal actions they will enact?
In fact, it’s just the opposite. It incentivizes the states and federal government to both adhere to the US Constitution. It will force the federal government to properly consider the responses from the states before it passes new regulations. Checks and balances between the states and federal government are no more chaotic than those between Congress, the Supreme Court, and the President.
Isn't this what the segregationist states tried to do in the 60's?
No. Certain southern states blatantly violated the 14th and 15th amendments of the US Constitution. Sadly, so did the federal government and the Supreme Court when they made segregation the law of the land with Plessy vs. Ferguson (1896) until Brown vs. Board of Education (1956). While some states acted unconstitutionally for 8 years, the federal government did so for 60 years. Ultimately, social and financial pressures forced everyone to follow the Constitution and recognize the rights our fellow citizens deserve.
While all governments may abuse power (more so the larger they become), we have to ask where the biggest risks to our rights exist today. Is it from 1960's Alabama or from today's ever growing federal government?
Wasn't this used by the southern states to promote slavery?
Absolutely not. Slavery was the law of the land. The federal government enforced harsh fugitive slave laws that supported the kidnapping of escaped slaves to bring them back to the South. Slave owners supported these laws and had no reason to reject federal law. Northern states used their state powers to withhold cooperation from these laws.
It sounds good in theory why not just leave everything to the courts?
This power has already been granted by the courts so why not create a thoughtful process to use it when needed? The states are intended to have some powers in excess of the individual citizen's ability to merely sue the federal government. If the states don't fulfill their duty to balance against federal overreach, what does the 10th amendment actually do?
Ballot Language (SCR1016) – Section 3 of the Arizona Constitution
A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.
B. To protect the people's freedom and to preserve the checks and balances of the United States Constitution, this state may exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the constitution by doing any of the following:
1. Passing an initiative or referendum pursuant to Article IV, part 1, section 1.
2. Passing a bill pursuant to Article IV, part 2 and article V, section 7.
3. Pursuing any other available legal remedy.
C. If the people or their representatives exercise their authority pursuant to this section, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.
Who is involved in the campaign?
- Legislative Sponsor ‐ State Senator Chester Crandell (LD6)
- Author – Clint Bolick at the Goldwater Institute
- Private Sponsor – Jack Biltis – President, TAG Employer Services
- Head Fundraiser – Jess Yescalis – Yescalis Campaign Strategies
- Campaign Spokesman – Jonathan Paton – former State Senator & candidate for US Congress