Readers of my past columns know that I spend significant time analyzing direct democracy measures and the interplay between these measures and the U.S. Constitution. In the space below, I discuss an interesting Arizona initiative (Proposition 122) that (at the time of this posting) appears to have been narrowly enacted by voters this week. The Arizona measure, like many initiatives adopted in California, sheds light on why some people want to resort to direct democracy, how initiatives often raise complex federal constitutional questions, and—perhaps most importantly—how an initiative can sometimes seem to be about one thing but on closer inspection turns out to be more about another.
What the Measure Says
Proposition 122 amends the Arizona constitution so that Arizona may exercise its “sovereign authority” to “protect the people’s freedom and to preserve the checks and balances of the United States Constitution” by “restrict[ing] the actions of [Arizona] personnel and the use of [Arizona] financial resources to purposes that are consistent with the [U.S.] Constitution . . .” The measure goes on to say “if the people or their representatives exercise their authority [under this provision by passing a statute or by other lawful means] . . . , this state and all political subdivisions . . . are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.”
In plain terms, the measure explicitly authorizes the state to pass laws that would block the use of any state resources to implement a federal law or measure that Arizona thinks violates the U.S. Constitution, whether or not any court, federal or state, has invalidated the federal program in question.
Is Proposition 122 Valid Under the Federal Constitution?
Some critics of the initiative apparently believe it is itself unconstitutional and could be struck down by a court. As one opponent says on its website:
Prop. 122 is unconstitutional. The U.S. Constitution, Article VI, Clause 2 (the “Supremacy Clause”) provides that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”. . . Americans fought a bloody Civil War over the now long discredited political doctrines of “nullification, interposition and secession.” . . . The U.S. Supreme Court has always rejected the doctrines of “interposition and nullification.”
My own view is that the measure—whether wise or ill-advised—is likely to pass constitutional muster, at least in the main. It is true under the Supremacy Clause that states, in the absence of judicial rulings that federal laws are invalid, cannot affirmatively violate federal prohibitions, and also cannot interfere with or obstruct federal operations undertaken to implement federal enactments. But it is also true that states are under no obligation to assist or participate in the implementation of federal laws. The Supreme Court made clear in New York v. United States and Printz v. United States that the legislative and executive branches of state and local government cannot be required by Congress to affirmatively enact or enforce federal policies. To the extent that Proposition 122 simply seeks to empower the state to take advantage of the freedoms that New York and Printz recognize, it is not unconstitutional.
There are some wrinkles here that need to be mentioned. First, New York and Printz both recognized that state judicial officials—as distinguished from legislators and purely executive branch members—do have obligations to process and enforce federal law. So Proposition 122 would violate the federal Constitution to the extent that the measure were to be construed as authorizing (or requiring) state courts to refrain from hearing/enforcing claims under a federal statute that Arizona thought was unconstitutional (especially if the state courts remained open to hear claims under analogous state statutes).
Second, even as to legislative and executive functions, Printz suggests a possible exception for “ministerial reporting requirements;” to the extent that federal law requires state agencies to provide information they possess to federal authorities, states may be under a valid obligation to do so, in which case Proposition 122 could not apply, even if providing the information consumed some state time or money.
Third, and perhaps most important in the real world, states or their subdivisions often agree to undertake certain steps to facilitate enforcement of federal laws in exchange for federal funding. If Arizona has accepted federal funds under the condition of undertaking certain actions, Proposition 122 could not be invoked to relieve the state of its duty to follow through on its contractual promises even if Arizona later decides that the federal law is unconstitutional. (There might be complicated situations in which a state agency or subdivision accepts conditional federal funds after the state legislature or electorate has pronounced the federal program at issue to be unconstitutional, but my own tentative sense is that promises made to the federal government must be kept, so long as the feds could have reasonably concluded that the state entities had apparent authority to make the promises; if Proposition 122 is to be enforced in these settings, state courts would have to enjoin state agencies or subdivisions from making promises to the federal government before federal funding is accepted.)
Before I leave the question of Proposition 122’s validity, I note that its supporters would appear to want it to remain on the books even if it were to be judicially invalidated in whole or in part. As the “Yes on 122” website explains: “Most importantly, [this measure allows] 3 million people in Arizona to express themselves on federal issues at the ballot box, which is hard to marginalize. This is designed as model legislation for other states.” In other words, part of the impetus behind Proposition 122 is the facilitation of a formal expression of the people’s views on the validity of federal measures, regardless of the legal or fiscal implications of that expression.
I think direct democracy is often designed to make a loud political statement, regardless of the technical legal effect to which that statement may lawfully be put. For that reason, I think recent California direct democracy developments about which I’ve written, such as the legislature’s attempts to repeal initiatives that are not being enforced, or judicially discovered bans on so-called advisory initiatives, are not in keeping with the deepest traditions of direct democracy.
What Does Proposition 122 Add, Legally Speaking?
The foregoing paragraphs suggest that Proposition 122 can be seen as yet another instance of state–federal tension. The people (as represented by the state legislature) of Arizona often have a different view of the scope of federal power under the U.S. Constitution than does the federal government itself, and Arizonans want to be able to blow the whistle on, and refuse to cooperate with, federal authorities. But the question then arises: Why is Proposition 122 needed? Don’t the people of Arizona already have the power to criticize and refuse to fund, on a case-by-case basis, federal programs that Arizona finds unconstitutional? (Indeed, doesn’t Arizona have the discretion not to participate in federal programs even when its disagreement with the federal programs relates to policy rather than federal constitutional authority?)
It turns out that the key legal reason Proposition 122 might be needed (from the point of view of its supporters) is not any beef Arizonans have with the federal government, but rather qualms they have about their own state constitution and the way it divvies up powers internally. In response to the question “Can’t the legislature do this without a ballot measure?” the “Yes on 122” website says:
A ballot measure is the only way to amend the Arizona Constitution and so it is the only way to make this mechanism applicable to all aspects of the state. Without a constitutional amendment, the courts have exempted various arms of the executive branch (Governors [sic] office, Attorney General…), chartered cities (Phoenix, Tucson…), and quasi governmental entities (Department of Environmental Quality…). Many federal programs currently partner directly with these entities and completely bypass any legislative overview.
So the real impetus behind Proposition 122 is not merely alleged federal overreaching; it is state court action that has insulated certain state institutions from control by the state legislature and/or state electorate. So what was sold predominantly as a federalism measure is really an intra-state reorganization of power. That doesn’t make the measure bad or unconstitutional (most intra-state reorganizations are valid, as the Supreme Court made clear last Term in the Schuette v. BAMN case), but it does highlight that there is often more to an initiative measure than meets the eye, which might explain the skeptical attitude with which many persons view the initiative device.