On Tuesday, voters in Arizona passed Proposition 122 — a state constitutional amendment so dubious that law professors are already warning that it is blatantly unconstitutional. The “state sovereignty” bill as it is called allows lawmakers to ignore any federal law that they deem to be unconstitutional.
According to Arizona State University law professor Paul Bender, “if the state Legislature thinks the federal law is unconstitutional, it can announce that it’s unconstitutional and every employee of the state has to obey what the state Legislature says about the constitutionality — rather than what the federal courts say.”
Bender predicts that if something is not done about the new legislation, Arizona will face costly federal lawsuits. “Litigation is really expensive and time-consuming,” he said. “And state employees have a lot more important things to do than fight losing battles against federal legislation,” he said.
The Republican-backed measure sponsored by state senators Chester Crandell, Judy Burges, Al Melvin and state Representative Brenda Barton, as well as Governor-elect Doug Ducey and Attorney General-elect Mark Brnovich, will allow the state legislation to ignore or trash any federal programs or legislation it deems too costly, and to refuse to follow federal laws it deems unconstitutional, according to proponents of the measure.
“I support Prop 122 because Arizona needs to decide how it will best spend its own budget,” Ducey wrote in support of Prop. 122. “Many federal programs cost Arizona more than the state receives from the federal government. Prop 122 creates a way for the state to evaluate these programs and determine what makes sense for Arizona’s taxpayers. It won’t stop Washington from passing new laws, rules and regulations, but it can at least force them to pay their own bills.”
The sponsors claim that the bill prevents government overreach into states’ rights, such as the controversial struggle the federal government was forced to endure in an attempt to get Nevada rancher Cliven Bundy to pay his bills. At least one of the sponsors even traveled to Nevada to support Bundy earlier this year.
“The Bureau of Land Management is overreaching, and Arizona is (also) in the crosshairs,” Burges said at the time. “I stand with them.”
Bender says these arguments makes no sense.
“If the state doesn’t want to cooperate with a federal program, it doesn’t have to,” he said. “For example, that was the big fight about the Medicaid expansion. Some people in the Legislature said, ‘Don’t take that federal money, because it will end up costing us money.’ Other people said, ‘Take it.’
“But the governor sided with the people who wanted to take it, and the Legislature decided to take it. But they always had the option not to take it,” Bender said. “If you’re worried that taking this federal money is going to cost you money, don’t take it. You don’t need this (Proposition 122) to tell you, you don’t have to do that.”
As for federal law, Bender pointed out, “States have to cooperate with federal law. They don’t have to enforce federal law, but they have to obey it.”