House-passed legislation to empower a committee of lawmakers to “make null and void and of no force and effect federal executive orders, agency orders, rules, policy directives, regulations, acts of Congress, or federal court rulings” has died in the Senate State Affairs Committee on a 6-3 vote. The bill would have empowered the committee, simply by action of its two co-chairs, to impose an immediate “pause” rendering any federal action approved since Jan. 1, 2021 unenforceable in the state for a period lasting until the end of the following year’s legislative session.
Rep. Sage Dixon, R-Ponderay, the bill’s lead sponsor and co-chair of the Legislature’s Federalism Committee, said, “Is it legal? Our Attorney General did a review … and the legislative itself is completely legal. … They said in their opinion, the rub could come when we take that action or say we’re not going to act upon it, but that’s a later argument to be had in that case.”
“Nullification is unconstitutional,” said Sen. Grant Burgoyne, D-Boise, an attorney.
Sen. Jim Guthrie, R-McCammon, said, “What if local counties … decided they wanted to make null and void legislation that we passed at the state level? … I think this could cause even further lawsuits and actions that would be problematic.”
“I love this state and I love the things that we’re about, and I don’t agree with everything that the federal government does, but this morning, in the (Senate’s) 2nd Order, I’m going to pledge allegiance to the United States,” Guthrie said. “I just think we have to maintain some kind of respect for the system, however frustrating it can be.”
Senate Minority Leader Michelle Stennett, D-Ketchum, noted that the bill’s fiscal note anticipated “no fiscal impact.” “Are we prepared to be putting more into our legislative budgets in order to make sure every time we disagree that we are going to go to court and the taxpayers will pay for that court hearing?” she asked.
Dixon responded, “The committee falls under the legislative budget already at that point. We would be using probably the Constitutional Defense Fund or the legislative account if it does go to court.”
Sen. Patti Anne Lodge, R-Huston, the committee chair, noted that the committee passed SB 1205, restricting state resources from being used to enforce federal actions regarding gun rights that conflict with the Idaho Constitution. “That was one through the Legislature, that was not done through any special committee,” she said. “So why can’t we still do the same thing?” She noted that SB 1205 had “a tremendous number of sponsors on it.”
Russ Hendricks, lobbyist for the Idaho Farm Bureau, the only person to testify in favor of the bill, said, “It provides a process that can happen in a more formal manner to get the ball rolling a little bit easier. That’s what it does.”
Jonathan Oppenheimer, lobbyist for the Idaho Conservation League, told the committee, “We understand and appreciate that there are valid questions and a vibrant debate and dialogue around the tension between states’ rights and the federal government, and that there is an appropriate venue to have that dialogue – and that is in the federal court system.”
Senate President Pro-Tem Chuck Winder, R-Boise, said, “This is a difficult issue. … It seems to be like we do need some method and mechanism to deal with this, and SB 1205 was a good example of people working together trying to get it done based upon what we thought was going on at the federal level. There are certainly a myriad of other issues that are out there including immigration, you name it, that impact the citizens of this state, that I do think we need to be sensitive to.”
Winder, Senate Majority Leader Kelly Anthon, R-Burley, and Senate GOP Caucus Chair Mark Harris, R-Soda Springs, cast the three votes against killing the bill.
Lodge said she couldn’t get past the lines in the bill calling for the committee to make federal actions “null and void.” “We do have a legislative process,” she said. “We do have public hearings where a great amount of people can come in and just give information on ideas or something that’s come before us. … We do make an oath to the Constitution of the state of Idaho and to the United States Constitution.”
Former Idaho Attorney General Jim Jones, who also is a former chief justice of the Idaho Supreme Court, submitted a letter in opposition to the bill. Here is his full letter:
“Statement of Jim Jones in opposition to House Bill 322
Senate State Affairs Committee
May 3, 2021
Honorable Chairman Lodge and members of the Committee:
House Bill 322 seeks to place the Idaho Legislature on a par with the United States Supreme Court--able to “make null and void and of no force and effect federal executive orders, agency orders, rules, policy directives, regulations, acts of congress, or federal court rulings.” Usually, legislatures just exercise legislative powers, leaving it up to the courts to exercise judicial powers, such as ruling upon the constitutionality of actions by all three branches of government. I’m inclined to think the House has overreached a bit with this bill.
The problem, as I see it, is that Article VI of the United States Constitution states, in pertinent part, “This Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land.” All of the “federal actions” that House Bill 322 purports to give the Idaho Legislature the ability to invalidate are presumed to be the law of the land until such time as they might be invalidated by a federal court.
From the beginning of this country, it has been assumed that the way to challenge the constitutionality of any action taken by the federal government is to do so in the federal court system. Since “federal actions” are presumed to be valid laws of the United States, unless and until found to be otherwise by a federal court, another potential problem arises under Idaho Code section 59-401. Legislators are required to take an official oath that they will “support the Constitution of the United States.” If legislators seek to invalidate any “federal actions” on their own, without the benefit of a federal court ruling, it would seem to be a clear-cut violation of their oath of office.
Finally, it seems a bit cheeky for the House to contend it has the power to declare “acts of congress or federal court rulings” to be null and void. I’m sure that won’t work too well. I can recall an instance that illustrates the point. When I was working for the late Senator Len Jordan in Washington in 1970, the U.S. Supreme Court found that a provision of the Idaho Constitution was violative of an Act of Congress. Our Constitution said Idahoans could not vote until they were 21 years of age, but Congress set the voting age at 18 that year. Idaho lost, at least with respect to federal elections. The case is Oregon v. Mitchell, 400 U.S.112(1970).
If the Legislature wishes to send a message to the federal government, it would be best to do so in a non-binding resolution, rather than by way of a legislative act that is unconstitutional and bound to fail. I would urge the defeat of House Bill 322.