This year’s Idaho Legislature is tackling issues of importance to Idahoans. I am confident we’ll see a balanced budget (as required) with a strong boost in education spending. Idaho individuals and businesses will receive substantial tax relief. There is a serious effort to expand health care coverage.
There are a couple of bills creeping forward that should be blocked. One is flat out unconstitutional under both the U.S. Constitution and Idaho Constitution. Another is just bad policy. Both will subject Idaho to national scorn. It is time for House members and, if necessary, Senate members to step up to the plate and defeat both measures.
The first is HB 461 by Rep. Paul Shepherd (R-Riggins). It purports to grant the Idaho Legislature the power to declare federal laws and court decisions unconstitutional and simply disregard those so deemed. This is violates Article VI, sec. 2 which has been part of the U.S. Constitution since 1787:
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
That is the Supremacy Clause and it means that federal law, whether the U.S. Constitution, approved treaties, or law, either congressionally created or decreed by the courts, is the supreme law of the land. The U.S. Supreme Court has been deemed the final arbiter of what is constitutional since its decision in Marbury v. Madison in 1803.
Moreover, Article I, section 3 of the Idaho Constitution states: “The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.” That connects the Idaho Constitution directly to the Supremacy Clause.
Rep. Shepherd was advised of all this last year by the Idaho Attorney General’s Office – but he continues to plow forward. Worse, the House State Affairs Committee voted last week to send this measure to the House floor.
Before this measure is considered on the House floor, legislators may want to review this section of the Attorney General’s letter to Rep. Shepherd:
Because the Constitution was formed by "[w]e the people," a single state cannot render a federal law void and of no effect. James Madison, a primary author of the Constitution, stated that a state's declaration that certain federal acts were null and void did not "annul the acts" because the attempted annulment came "from the Legislature only, which was not even a party to the Constitution." The Writings of James Madison 1819-1836 445 (Nabu Press 2013). Thus Madison concluded that there was "not a shadow of countenance to the doctrine of nullification." Id. at 587. Such declarations, in Madison's view, "are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion by exciting reflection." Letters and Other Writings of James Madison 553 (Univ. Mich. 1865).
Anyone who believes in original intent should vote “no” on this one.
The final measure I would like to comment on is the so-called Anti-Sharia law, HB 419. It is also up for floor consideration. Sponsored by Rep. Eric Redman (R-Athol), this measure declares that Idaho will not enforce foreign law that violates Idaho’s public policy where the foreign jurisdiction doesn’t grant rights equivalent to U.S. and Idaho requirements.
Last year, I spoke with conservative legal scholar and UCLA law professor Eugene Volokh about this measure and he shared the following, which is worth reiterating:
The bill would cause at least two serious problems: First, it would make judgments from almost all Western democracies, including major trading partners (Canada, England, France, Germany) unenforceable, because those countries don’t use civil jury trials. (The right to trial by jury in civil cases is a “fundamental right,” and would thus be covered by the bill. See, e.g., Farmer v. Loofbourrow, 75 Idaho 88, 94(1954)).
Second, it would require Idaho courts to ignore foreign divorce judgments from countries that use sex-discriminatory or religion-discriminatory rules, even when those divorce judgments involved citizens of those countries, and were gotten decades before those citizens moved to Idaho. That means that, for instance, an immigrant’s Idaho marriage to an Idaho citizen might be invalidated because her earlier divorce in her country of birth has to be ignored under the proposal.
Both HB 461 and HB 419 deserve to fail – one because it is unconstitutional and the second because it is simply unwise.