Let’s make it clear up front that Arizona has become the odd state out of the Union lately, fighting furiously for its independence from the rest of the nation to free it to be as bizarre a banana republic as possible. From Crazy Joe Arpaio in Maricopa County to its hatred of people whose names end in a vowel, Arizona has become special.
Yet, even a clock thats stopped is right twice a day. Could this be Arizona’s moment?
Jeff Gamso writes about proposed SB 1433, Arizona Senate, First Regular Session 2011, which proposes to fix the relative rights and powers between the federal government and the sovereign state of Arizona as of 1912, the year it was admitted to the Union.
For example, check out section 2 of the bill:
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.
While this can be seen as a state’s effort to contend that it’s entitled to nullify acts of Congress at will, should they decide that they aren’t in the mood to comply with what the federal government thinks is a peachy idea, it’s not nearly as crazy as it appears.
Consider the day when the United States of America shook hands with Arizona, sealing the deal of its entry into the Union. The fundamental law of the United States, the Constitution, was assumed to the extent the Fourteenth Amendment made it applicable to the states. Arizona knew the decisions of the Supreme Court, considered the extent to which it held the federal government was empowered to enact laws that could control the conduct of Arizonians, and after serious deliberation, decided that it could live with the deal.
And so Arizona became one of the United States, ceding some limited amount of its power over its citizens to a bunch of people in Washington, D.C. Everybody was happy.
Over time, however, the Supreme Court in Washington changed its mind about some of the rules of the game, holding that the folks in Washington could take more power, more authority, than it had in 1912. “Necessary and proper” became whatever they want to do, and the scope of federal authority kept getting broader and broader. Well, this wasn’t the deal Arizona agreed to when it shook hands. Nosireebob.
If one thinks of the situation like a contract, where one sides gets to change the terms and conditions at will, making a contract that was acceptable at the time it was formed and turning it into a lousy deal a century later, must the State of Arizona have to bite its tongue and eat it? When did the State of Arizona, crazy as they may be, agree to give away more of their authority over the conduct of their residents than was approved in 1912?Much as it might wish otherwise, Arizona does not have the authority to determine which federal laws will apply within its borders. And while Arizona courts can, in the first instance, determine whether federal laws are constitutional, they don’t have the last word on the matter. There isn’t universal agreement that Marshall was right in Marbury when he declared the power of the federal courts. But for 207 years that’s been the controlling principle. Arizona’s going to have a tough time convincing the federal courts that it, not they, gets to determine the meaning of the Constitution. Frankly, it’s a secession bill.
Indeed, it is a secession bill. Part of the deal that Arizona agreed to was to accept the decisions of the Supreme Court of the United States as the final authority on what is, and what is not, constitutional. This was the rule since Marbury v. Madison, and was well known to be the case in 1912. Arizona realized that some nine judges would be making decisions for them when they signed on, and signed on nonetheless.
But does that mean they signed away their soul when they joined the club? Does that mean that they gave the federal government carte blanche to assume any and every power it wanted, stripping the state and its citizens of the rights and privileges they possessed when the deal was cut?
It would appear that a certain amount of flexibility was implicit in the deal, joining hands with the other states or their mutual benefit and protection. No state could reasonably believe that the federal government would not determine policy for all and enact such measures as made that policy happen. Then again, could anyone in 1912 anticipate such initiatives as highway funding bills that would require states to impose 55 mile per hour speed limits? Or more to the Arizonian agenda, let Hispanics enter the country?
But does that mean that any wild and crazy law that passes muster in Washington is part of the deal? That’s not so clear. Must the states take anything and everything the feds dish out? Nowhere in the Constitution does it eliminate all right to self-governance. Indeed, it kinda says the opposite, even though every schoolchild knows that the tenth amendment was thrown in there just for kicks.
It doesn’t seem viable for states to pick and choose which federal laws, federal court decisions, they will adhere to and which they will decide to ignore. Being part of a nation is a package deal, you take the good with the bad. Yet when the deal goes sour, and the terms and conditions have changed so materially that one part to the contract can no longer abide the other party’s modifications, what’s to be done?
Arizona, no matter how wacky and offensive its approach to self-governance, has a point. If Arizonians want to set themselves apart from the rest of the United States of America given the federalization of conduct that has been reserved to the states, are they not entitled to the government they choose?
That SB 1433 is a secession disguised as a state’s right to rely on the tenth amendment is a test of federalism. While Arizona can’t win under its own terms, where each state of the Union can cherry pick the federal laws that please it and toss out the rest, it does make the point that a deal was struck and the federal government isn’t living up to its terms. Arizona may be off the reservation, but the feds haven’t been particularly honorable either. Maybe it’s not crazy at all for Arizona to put its foot down and say, enough.
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