Arizona Nullification Law SB1433

It was the Arizona Senate which came up with the SB1070 law which criminalizes being an alien without documentation in Arizona. It was seen as a divisive and unnecessarily cruel form of legislation by many in America at the time. The Arizona Senate has now come up with a law, SB1433 [pdf warning], to nullify Federal laws.

The bill establishes a committee to look over all federal laws passed and determine which ones are constitutional or not. These recommendations are then passed to the Arizona legislature which can then nullify a law by a simple majoritarian vote. The committee's next responsibility is then setting guidelines to ensure that the federal law is not enforced by the state. From the bill (the Tucson Citizen has the bill in HTML and non-caps);

The committee shall recommend, propose and call for a vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside of the scope of the powers delegated by the people to the federal government in the United States Constitution. The committee shall make its recommendation within thirty days after receiving the federal legislation for consideration and process.

The committee may review all existing federal statutes, mandates, and executive orders for the purpose of determining their constitutionality. The committee may recommend for nullification existing federal statutes, mandates and executive orders enacted before the effective date of this section.

On the Committee's recommendation for nullification, the legislature shall vote on whether to nullify the action within sixty days after the committee's recommendation. Until the vote, the issue in question is of no effect.

...

If the legislature votes by simple majority to nullify any federal statute, mandate or executive order on the grounds of constitutionality, this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order.

The committee shall ensure that the legislature adopts and enacts all measures that may be necessary to prevent the enforcement of any federal law or regulation nullified pursuant to this section. The committee shall ensure that the jurisdiction of any cause of action between this state and the federal government regarding nullification of any federal legislation, mandate or executive order with the Supreme Court of the United States alone as stated in Article III, Section 2 United States Constitution.


I am not certain about the part that the "issue in question is of no effect". I think it means Arizona will not honor the federal law until it has been vetted and passed by the committee.

The Arizona's Senate justification for this legislation is longer than the language to set up the actual committee. It is more an airing of grievances than legislation. Then again I am not familiar with the process of challenging a law's constitutionality and the legislators probably put in all these justifications should the law be challenged.

I suspect SB1433 will be challenged as it seems kind of silly. Federal laws are challenged by states and go to the Supreme Court to determine their constitutionally constantly. This seems to be creating a mini-Supreme Court in Arizona that has extra temporal powers to go back through the history of federal legislation and the additional power of ensuring that Arizona does not enforce these laws.

The legislative justification:

1. The Tenth Amendment to the United States Constitution guarantees and reserves to the states or their people all powers not specifically granted to the federal government elsewhere in the Constitution as they were publicly understood at the time that the amendment was ratified on December 15, 1791 subject only to modification by duly ratified subsequent amendments to the United States constitution. The guarantee of those powers is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

2. As a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912, the Tenth Amendment to the United States Constitution guarantees to this state that, other than the enumerated powers expressly granted to the United States under Article I, section 8 of the United States Constitution, Congress and the federal government will not exercise any purported additional control over or commandeer rights belonging to this state or its people.

3. Under the Tenth Amendment to the United States Constitution, the people and this state retain their exclusive power to regulate this state subject only to the Fourteenth Amendment's guarantee that the people and the state of Arizona exercise those sovereign powers pursuant to each citizen's lawful privileges or immunities and in compliance with the requirements of due process and equal protection of the law.

4. The ninth amendment to the United States Constitution secures and reserves to the people of Arizona as against the federal government their natural rights to life, liberty and property as entailed by the traditional Anglo-American concept of ordered liberty and as secured by state law, including their rights as they were understood and secured by the law at the time the amendment was ratified on December 15, 1791 as well as their rights as they were understood and secured by the law in this state at the time the Arizona Constitution was adopted. The guarantee of those rights is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

5. At the time the United States Constitution was ratified on June 21, 1788, the sole and sovereign power to regulate the state business and affairs rested in the state legislature and has always been a compelling state concern and central to state sovereignty. Accordingly, the public meaning and understanding of Article I, section 8, the "establishment clause" of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912. Further, the power to regulate commerce among the several states as delegated to the Congress in Article I, section 8, clause 3, United States Constitution, as understood at the time of the founding, was meant to empower Congress to regulate the buying and selling of products made by others, and sometimes land, associated finance and financial instruments and navigation and other carriage across state jurisdictional lines. This power to regulate commerce does not include agriculture, manufacturing, mining, major crimes or land use, and does not include activities that merely substantially affect commerce.

6. At the time the United States Constitution was ratified on June 21, 1788, the commerce clause was not meant or understood to authorize Congress or the federal judiciary to regulate the state courts in the matter of state substantive law or state judicial procedure. This meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to the validity of religious sectarian or foreign law as being controlling or influential precedent, has never been modified by any duly ratified amendment to the United States Constitution. Accordingly, the public meaning and understanding of Article I, section 8 and the Tenth Amendment of the United States Constitution is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912. Additionally, Article I, section 8, clause 18 of the United States Constitution, the "necessary and proper clause," is not a blank check that empowers the federal government to do anything it deems necessary or proper. It is instead a limitation of power under the common law doctrine of principals and incidents that allows the Congress to exercise incidental powers. There are two main conditions required for something to be incidental, and therefore, "necessary and proper", the law or power exercised must be directly applicable to the main, enumerated power and it must be "lesser" than the main power.

7. At the time the United States Constitution was ratified on June 21, 1788, Article I, section 8, clause 1 of the United States Constitution, the "general welfare clause," did not empower the federal government with the ability to do anything it deems good. It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are prescribed in Article I, section 8 of the Constitution of the United States. When James Madison was asked if this clause was a grant of power, he replied, "If not only the means but the objects are unlimited, the parchment (the Constitution) should be thrown into the fire at once." Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States. The Commerce Clause was not meant or understood to authorize Congress or the federal judiciary to establish religious sectarian or foreign statute or case law as controlling or influential precedent. This meaning and understanding of Article I, section 8, the establishment clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to controlling or influential legal authority, has never been modified by any duly ratified amendment to the United States constitution. Accordingly, the public meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.

8. Accordingly, we affirm that neither the "Commerce Clause," the "general welfare clause" or the "necessary and proper clause" of the United States Constitution have ever been expanded, modified or amended and therefore, this state specifically rejects and denies any expanded authority that the federal government may attempt to enforce.

9. The Congress and the federal government are denied the power to establish laws within this state that are repugnant and obtrusive to state law and to the people in this state. They are restrained and confined in authority by the eighteen items as prescribed in Article I, section 8 of the United States Constitution.

10. Congress and the federal government are denied the power to bind the states under foreign statute or case law other than those provisions duly ratified by the Congress as a treaty, so long as the treaty does not violate this state or the United States Constitution.

11. Further, no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to preempt state legislation.

12. This act serves as a notice and demand to the Congress and the federal government to cease and desist all activities outside the scope of their constitutionally designated powers.


There is some strange language in this justification. For instance; "reserves to the people of Arizona as against the federal government their natural rights to life, liberty and property as entailed by the traditional Anglo-American concept of ordered liberty". The addition of the words Anglo-American seems odd. Given that there were racial overtones to SB1070 adding that language was unnecessary if not unwise in this legislation.

The justification makes claims to the signing of the American constitution in 1791 but then notes Arizona was admitted to statehood in 1912 by which time what was understood as the 'Federal Constitution" and its existing network of laws and conventions were very different. It is hard not to look at this as a defending of the constitution as it is imagined rather than as it is.

It is the same for the part about the "commerce clause" in justification No.6; So it seems this legislation is aimed at trying to stop the Affordable Care Act. The justification claims that the commerce clause did not mean in 1788 what it means constitutionally today. Again, Arizona came to statehood in 1912, so it is a spurious argument. The nature of constitutions is that they become the sum of Judicially allowed decisions and statutes. The correct way to change the meaning of the commerce clause is not by a committee at the state level, it is by a constitutional amendment.

I have some empathy with the legislation as the governments at the national level often throw greater tasks, expenditure on the states without much thought. State bureaucracies are smaller and often stretched so these extra responsibilities can become burdens.

However, the way it is written with the childish claims to the commerce clause and general welfare clause make the legislation seem non-serious and more political in orientation than a useful statute. I understand that a Red State like Arizona might not like that a Democrat is in the White House. However this legislation does not aid good governance in Arizona nor does it address the issues facing Arizona. This is wasteful legislation.
cam 2011-03-05 09:11:38.0