Senate panel approves measure to establish committee challenging federal laws - East Valley Tribune: Arizona

Senate panel approves measure to establish committee challenging federal laws

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Posted: Thursday, February 17, 2011 1:40 pm | Updated: 10:58 am, Fri Feb 18, 2011.

A Senate panel voted Thursday to set up procedures for the state to void federal laws and regulations that legislators here believe are unconstitutional.

But proponents argued it's not nullification - at least not technically.

SB 1433 would empower a 12-member committee of lawmakers to review any federal measure, no matter how long it has been in effect. If the panel concludes the issue exceeds federal authority, the Legislature would have 60 days to decide whether to nullify it.

And once that happened, "this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order."

But Sen. Lori Klein, R-Anthem, told members of the Senate Committee on Border Security, Federalism and States' Rights that her proposal is constitutional. That's because it acknowledges that, ultimately, it is the U.S. Supreme Court which will decide whether the state acted properly in voiding the law. And Klein said Arizona will have to live with that decision.

Klein said her measure is "designed to return the power of governance to its constitutional place: the individual states and the people of the United States."

Thursday's committee action of this measure wasn't the only challenge to federal authority.

In separate bills, the panel also approved a proposal by Sen. Sylvia Allen, R-Snowflake, paving the way for Arizona to challenge federal gun regulations and the Endangered Species Act. But those require compacts with other states.

The nullification measure, however, would set Arizona up for direct challenges to federal power.

"It positions our state Legislature to protect and preserve for the people of our state freedom from federal executive, legislative and judicial tyranny," Klein said.

While the measure does authorize lawmakers to nullify federal laws, Scottsdale attorney Ted Naeckel suggested to committee members that they might want to avoid the word "nullification."

He pointed out the ultimate authority of the U.S. Supreme Court to decide the validity of any federal action.

"This bill is calling for a mechanized process to help the Legislature examine and determine what the federal government has actually done, which is what you should have done for the last 50 years," Naeckel told lawmakers. "It's your obligation to find out what you're agreeing to or what you're being forced to do."

He said what's likely to happen once lawmakers declare a measure void is that the state attorney general will ask the high court to rule on the matter.

"Maybe a better word is ‘federalism,'" Allen said, rather than nullification. She also agreed that the state has ignored its obligations to pay attention to - and challenge - what was coming out of Washington.

"Some of these things we should have questioned a long time ago and said, ‘Wait a minute,'" she said. "But we haven't, so now we're 50 years into the mess."

And in that 50 years, Allen said, lots of intermediate level courts have issued rulings that have empowered the federal government and restricted states' rights.

Sen. Steve Gallardo, D-Phoenix, questioned the assertion in the proposal that the U.S. Supreme Court will agree to accept and review challenges by Arizona to federal law. But Naeckel said the U.S. Constitution spells out that the high court has "original jurisdiction" on disputes between states and the federal government.

Gallardo also sought to limit the scope of the screening panel - and, by extension, the Legislature itself - to review new federal laws. But Klein opposed such restrictions, saying there should be review power of any law or regulation, no matter how old.

She specifically singled out last year's federal health care act, which she referred to as Obamacare.

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