Legal magazines have recently been reporting on a spate of legislative proposals in various states that seek, albeit in different ways, to give legislatures increased power to interpret and implement the Constitution in the face of judicial rulings with which the legislators may disagree. Any first-year law student who sees headlines describing such efforts might be inclined to shudder; anyone remotely learned in the law knows that the idea of judicial review—the authority of courts to rule on the constitutional validity of legislative and executive enactments, and to have those rulings respected at least to some extent by the other branches—is a bedrock in our system of constitutional democracy.
Some of these legislative proposals are troubling indeed. But for some others, there is less than meets the eye. And still others, while potentially problematic, serve as helpful reminders that states have some flexibility to structure relationships between governmental organs in ways that seem foreign to people who view the world only through the federal governmental lens.
Let’s start with a fairly innocuous bill, Arizona HB 2097. This bill echoes a voter-enacted initiative (about which I have previously written) known as Proposition 122. This Proposition, narrowly adopted by the state’s voters in 2014, amended Arizona’s constitution to make clear 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 provides that “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 other words, Proposition 122 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.
HB 2097—the current proposal in the Arizona legislature—simply reiterates this power, but does not apply the power to any particular setting. The bill merely reminds the world that, pursuant to Proposition 122, “the Legislature may enact legislation . . . that prohibits the state from using . . . resources to enforce, administer or cooperate with any action of the United States government that constitutes commandeering.”
As I wrote three years, ago, there is a good chance that Proposition 122—and thus this statutory proposal which simply reasserts but does not exercise the same power announced in the Proposition—would pass federal constitutional muster:
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 under New York v. United States or Printz v. United States that that states are generally under no obligation to assist or participate in the implementation of federal laws. [And they can decide not to participate for any reason or no reason at all; a belief that the federal policy in question is unconstitutional, even if such a belief were misguided, should be a valid basis for declining to assist.] 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.
I did note a few wrinkles. 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. And there are some areas (like ministerial reporting) where the federal government perhaps might be able to compel affirmative cooperation from state executive agents too. So Proposition 122 and HB 2097 would violate the federal Constitution to the extent that they are construed as: (1) 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) or; (2) authorizing (or requiring) state entities to refrain from cooperating with the feds in areas that fall outside of the state autonomy recognized in New York and Printz. But since Arizona hasn’t actually exercised any power in Proposition 122 and HB 2097—but has merely asserted the right to exercise power—there is no reason to believe the state will violate valid federal commands. At this time, then, there would be no basis for invalidating either the initiative or the proposed legislation.
Now let’s turn to a more ambitious and more problematic proposed statutory measure, this one from Idaho, known as the “State Sovereignty Responsibility Act.” This proposal provides: “The Idaho Legislature hereby declares that the state of Idaho, on behalf of its citizens, is the final arbiter of whether an act of Congress, a federal regulation or a court decision is constitutional and may declare that the federal laws, regulations and court decisions are not authorized by the Constitution of the United States and . . . are null, void and of no effect regarding any Idaho citizen residing within the borders of the state of Idaho.” The bill then lays out a process by which the legislature of the state may make such a declaration, the consequences of which would be that no state or federal official (including state court judges) could proceed to try to implement the law, regulation, or judicial ruling declared invalid by the state legislature.
This bill is different in kind from the Arizona measure. First, it is not limited to withholding state executive or legislative implementation assistance to the feds, but instead directly tells state courts not to process federal law that the Idaho legislature declares bad regardless of whether the federal law has been upheld by the federal courts (including the Supreme Court). Indeed, the measure goes beyond even directing state courts not to process federal law, and seeks by its terms to regulate directly federal “agent[s]” and “employee[s]” in ways that clearly violate Supremacy Clause principles embodied in such venerable Supreme Court rulings as McCulloch v. Maryland. I could go on. But suffice it to say that the only real legal question about the Idaho proposal is whether, if it were enacted, the power it declares would actually have to be exercised by the Idaho legislature before the measure were struck down. I think that even though the measure by its terms merely authorizes a process that the Idaho legislature would still have to use before any federal measures were actually declared invalid, the measure could be open to immediate challenge under federal supremacy principles because it could have a chilling effect on the assertion of federal rights to which the Idaho legislature might be hostile. Imagine someone in Idaho who would like to exercise free speech rights but who worries that a judicial ruling protecting him could be the subject of an Idaho legislative declaration; if the speaker can’t count on judicial protection of his speech, he might be silenced in the first place.
Finally, consider a proposal in Florida to amend the state constitution to provide that “[a]ny law, resolution, or other legislative act declared void by [any state court in Florida] may be deemed active and operational notwithstanding the [state] court’s ruling, if agreed to by the legislature pursuant to a resolution adopted by a two-thirds vote of each house within five years after the date that the [court] ruling becomes final.”
If enacted, this state constitutional amendment would allow the state legislature, by a two-thirds vote, to, in effect, overturn state court rulings and undo the rights adjudicated within them. Unusual? Surely. Unconstitutional? Very possibly, but the matter could get complicated.
One objection might be that such a measure—giving the legislature power to overrule the judiciary—violates separation of powers. But to the extent that the objection is made under the state constitution, the rejoinder is that the measure seeks to amend the state constitution itself. And it is far from clear how much the federal Constitution requires state constitutions to have separation of powers frameworks that mirror the federal government’s (recall that many states have not unitary but divided executive branches—e.g., separately elected attorneys general—and that Nebraska has a unicameral legislature).
There is a sense in which the Florida proposal seems to undercut the notion of judicial review, but that raises the question whether there is anything in the federal Constitution that requires states to confer upon their courts the power of judicial review at all? If yes, is the requirement limited to judicial review necessary to enforce federal constitutional (as opposed to state constitutional) limitations? (The Florida proposal by its terms would seem to give the legislature the power to override judicial rulings that are based on both, but perhaps the measure would be more likely to be upheld if it were limited to state court invalidations based on the state constitution.)
Another possible argument against the measure might be that it violates the so-called “Republican Guarantee” Clause of the Constitution—which requires the federal government to guarantee to the states a republican form of government—for a state to essentially permit its legislature to act as a super-supreme state court. But the meaning and justiciability of this clause of the federal Constitution are far from certain.
A more promising attack might be that to have a legislature sit as a court would violate the due process rights of individual litigants on whose behalf the original judicial decisions of invalidity were made, insofar as legislatures are not institutionally structured to process legal arguments and adjudicate fairly and impartially the way courts are. This kind of argument would require some definition of what a decision-making tribunal must look like to comport with due process (and the fact that legislatures are elected and take campaign contributions might not necessarily be enough to doom them, since many state court judges are elected and run campaigns that raise money). If the Florida proposed constitutional amendment goes anywhere, these issues may have to be explored in more depth.
All of these proposals show that Washington DC is not the only place to find interesting constitutional questions these days.