Skip to comments.TX:A Constitutional Law Lesson for Steve Benen
Posted on 05/10/2013 7:22:58 AM PDT by marktwain
On Monday, the Texas House of Representatives passed a bill that would bar state officials from enforcing any new federal gun laws. Via Kevin Drum, I see that the MaddowBlogs Steve Benen calls the bill crazy.
In this case, Texas nullification bill effectively hopes to freeze the status quo of federal gun laws in place indefinitely. The state is prepared to honor federal laws as they currently exist, but if policymakers in Washington expanded current laws in any way, Texas would ignore those changes based on the because I say so theory of modern jurisprudence.
It wouldnt matter if new federal laws are entirely constitutional; it wouldnt matter if the new laws saved lives; it wouldnt matter if the new news enjoyed broad, bipartisan support. Under the proposal pending in Texas, current laws have reached a ceiling, and any effort to raise that ceiling must be ignored.
This is, of course, crazy. Whether Texas likes it or not, states cant pick and choose which federal laws theyll honor and which theyll ignore.
I cant say at this point whether the pending bill has a chance of passing, though it seems like the sort of thing Gov. Rick Perry (R) would like to sign. But I can say the bill, if it becomes state law, would not withstand a legal challenge.
Ive got some news for Mr. Benen. States, in fact, can pick and choose which federal laws state officials will enforce, and state refusals to enforce federal law would most definitely withstand a legal challenge. In fact, they already have. See, e.g. Printz v. United States in which the Supreme Court held that state officials could refuse to implement a federal background check requirement for the purchase of new firearms. Under Printz and New York v. United States it is well established that the federal government cannot force state officials to implement federal laws.
Whether or not this specific bill is a good idea, this is not a nullification bill. It would not prevent federal officials from enforcing federal law within the state of Texas. As described by Benens source, it is simply a bill that says state officials will not enforce certain federal laws and that is something states have every right to do.
UPDATE: Heres a link to the bill text. A few portions of the bill seem ambiguous to me, but I dont see anything in the bill that would to prevent federal officials from enforcing federal law and any state law that purported to prevent federal officials from enforcing a constitutional federal law would be preempted under the Supremacy Clause.
SECOND-UPDATE: Benen has a follow-up post in which he acknowledges the point and (with the help of David Gans) summarizes what states can and cannot do when they disagree with federal law. I think Gans is largely correct, and its unquestionably true that some state legislators are overreaching. Id add two points. First, the idea nullification did not begin with Calhoun. We should not forget about the Virginia and Kentucky Resolutions.
Second, I dont know what Gans is thinking when he says Even though Printz leaves state and local governments some discretion, there is a strong argument that the Supremacy Clause forbids a state from singling out a class of federal laws it disagrees with and refusing to enforce them. Of course states can do this. So, for instance, the state of Montana can agree to enforce all federal laws save that requiring local law enforcement to conduct background checks for gun purchasers, or whatever else. If the feds want to limit the ability of states to pick and choose which federal laws to enforce, they have options such as conditioning the receipt of federal funds on state cooperation. State judges also have little choice but to apply applicable federal laws in relevant cases as when federal law provides a defense in litigation. But I am aware of no precedent that would suggest states dont have the ability to single out those federal laws they refuse to enforce.
From the SCOTUS decision:
“(c) The Constitution’s structure reveals a principle that controls these cases: the system of “dual sovereignty.” See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 457. Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution’s text. See, e.g., Lane County v. Oregon, 7 Wall. 71, 76. The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.”
The Federal Government can take their Supremacy Clause and the Commerce Clause and stick them up their conniving a$$es...
Oh... unlike the President and "his people"? Holder, for instance?
The 2nd amendment temporally follows the supremacy clause in the main body and therefore supersedes it.
It is not a supremacy issue, it is an enforcement issue.
Basically telling the Feds, if you want it enforced, you do it.
Now, can you imagine the Feds attempting gun confiscation in TX?
NOT going to happen.
This is going to happen, more and more, as the feds don’t have the resources to enforce all their dictates, the states are just going to ignore them.
That is a good thing to occupy and frustrate the Subversives until we can stop their reign of Terror.
Thanks for the ping!