Assistant Chief Deputy Attorney General Briane Kane told a crowd at an American Civil Liberties Union of Idaho (ACLU) event Tuesday that allowing states to nullify federal laws, a topic broached by Idaho lawmakers the past few years, would lead to states seceding from the U.S. Several lawmakers who backed such measures were on hand and disagreed with Kane’s legal views.
“Nullification theoretically falls apart on itself because you create the buffet of law, meaning state one chooses this law and state two chooses this law,” Kane said. “You have zero uniformity.” He also said that if states could nullify federal law, they would have unchecked power, which the framers of the Constitution tried to avoid.
“If you advance the theory of nullification, you’ve created an unchecked power, because who is it to tell the state that they’re wrong on nullification? There isn’t anyone,” said Kane.
Immediately after that comment, Rep. Pete Nielsen, R-Mountain Home, who backed such laws, asked Kane what checks there are on the U.S. Supreme Court, which is often the ultimate arbiter on constitutional issues. Kane said Congress has some power to regulate the Supreme Court.
During the legislative session, Kane wrote several opinions on behalf of the attorney general’s office questioning the constitutionality of laws that called for nullifying or limiting implementation of new federal health care laws. Lawmakers ended up passing a scaled-back version of that plan, which was vetoed by Gov. Butch Otter and replaced with a similar executive order.
Kane mentioned the Civil War numerous times in his presentation on nullification, adding that he was surprised that a country as big as the U.S. has only had one civil war since its creation. He defined nullification as the theory that a state has the right to invalidate federal laws it deems unconstitutional.
Rep. Vito Barbieri, R-Dalton Gardens, who helped write some of the anti-health care reform plans, heard Kane’s presentation. He said Kane did a good job presenting the legal opinion of the attorney general’s office, but differed on the potential effects of states nullifying federal laws.
“I don’t know that there’s an automatic conclusion that secession is necessary just by the act of state’s nullifying,” Barbieri told IdahoReporter.com. “I wouldn’t extend it that far at all.”
Barbieri said lawmakers will take up nullifying or otherwise pushing back against the federal government again. “The federal government is overintruding into state affairs in so many different areas,” he said.
Kane said nullification is an important topic, since many people are concerned with the actions of the federal government. “There’s a legitimate debate here about the scope and size of the federal government and the scope and size of the states,” he said.
States’ pushback against federal laws goes beyond health care. Idaho lawmakers passed a law rejecting the REAL ID plan for enhanced drivers licenses and approved a firearm freedom law that blocks federal gun regulations on any firearm made and sold wholly in Idaho. That law, a copy of similar laws in other states, has been struck down by a federal court, but is headed for an appeals court. Other states have legalized medical marijuana; that idea has been suggested by Idaho Rep. Tom Trail, R-Moscow, but gotten nowhere.
Kane said the nullification issue was one factor in what he said was record public participation during this year’s legislative session. “The backbone of our system is our ability to question our government,” he said. Kane also listed several steps less severe than nullification that states or individuals can take to show displeasure with the federal government. That list include acts of civil disobedience, opting out of federally-funded programs, litigating the constitutionality of a law and complaining loudly. Idaho has taken each of those actions at times, including suing to stop the federal health care law.
Kane also said there’s one step beyond nullification: revolution.
Note: IdahoReporter.com is published by the Idaho Freedom Foundation, which helped write the health care nullification legislation.