Nullification bills fail on House floor

Claiming that the federal government is out of control and making laws that adversely affect state sovereignty, Rep. Derek Skees, R-Kalispell, introduced two bills this year with the goal of providing Montana with the means to nullify federal law.

On bill called for nullifying the federal health care law passed by Congress last year. His second bill called for establishing a commission to decide which other federal bills should be nullified. Both bills, however, failed in the Montana House.

Skees told a House panel that voters in Montana put Republicans in power in last year’s election because Montanans want to stop the growing power of federal government.

About a dozen nullification bills have been sponsored by Republican legislators this session. The bills target a wide range of federal laws, including health care, Endangered Species Act and food safety. Other bills support an armed citizen’s militia or having FBI agents answerable to a county sheriff.

One proposed bill, HB549, introduced by Joe Read, R-Ronan, was intended to clarify the state’s position on global warming, which the bill claims “is beneficial to the welfare and business climate of Montana.”

About half of the 68 Republicans in the House are freshmen and, like Skees, who represents House District 4, urban Whitefish, support nullification ideas.

Democratic Gov. Brian Schweitzer, however, has expressed frustration with the nullification bills. Pointing out that Montana is part of the United States, he called talk about nullification “pretty toxic” and a cause of the Civil War.

Skees reacted to the governor’s comment by saying nullification is not about splitting up the union.

Other detractors to the nullification movement say it could cost Montana money if the state has to go up against the federal government in federal courts or if the state loses federal money. And some lawmakers say the national attention Montana is getting is embarrassing.

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The point of House Joint Resolution 20 is to declare the federal Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 to be “unconstitutional, null and void, and unenforceable.”

The joint House and Senate resolution was approved by the House Human Services Committee on Feb. 21 by 9-6 but failed on its third reading on the House floor on Feb. 24 by 46-52. It never made it to the Senate.

As introduced by Skees, HJ20 contains 35 “whereas” clauses, filling three pages which argue the case for Montana’s right to nullify federal law.

Beginning with the Magna Carta and England’s King John, who “was unjustly accumulating powers,” HJ20 provides a thumbnail history of the U.S. that includes 18th century colonials who “protested the overreaching British authority” and the signers of the Declaration of Independence who “recognized that liberty and other human rights were the grant of God, the eternal creator.”

Noting that “the grant of sovereignty is memorialized in the 10th Amendment,” that “18th century luminaries as James Madison and Thomas Jefferson readily discerned the unconstitutional nature of the Alien and Sedition Acts of 1798,” and that Ohio fought against “the unconstitutional Bank of the United States” in 1820, HJ20 argues that “for the preservation of liberty, constitutional review must not be confined to a horizontal course.”

Skees’ bill also points out that Gov. Schweitzer “provided a clear and excellent example of opposition to the unjust and unconstitutional federal overreach of power” when he stood up against the federal Real ID Act of 2005. The bill notes in another “whereas” clause that “25 states have approved resolutions or legislation against participation” in the requirements of the Real ID Act.

HJ20 was opposed by the Montana Nurses Association. Montana House Speaker Mike Milburn, R-Cascade, changed his vote from yes to no on the third reading.

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House Bill 382, the Montana Nullification Reaffirmation Act, introduced by Skees, called for the creation of an 11-member commission that would review federal law and provide the legislature with a recommendation to nullify laws which the commission finds unconstitutional.

The House Judiciary Committee passed HB382 on Feb. 21 by 11-9, but it failed on its second reading on the House floor on Feb. 23 by a 42-57 vote.

“If the legislature votes by simple majority to nullify a federal statute, mandate or executive order on the grounds of constitutionality, the state and its citizens may not recognize or be obligated to obey the nullified statute, mandate or executive order,” the bill stated.

Furthermore, the bill stated, “The legislature shall enact all measures necessary to prevent the enforcement of federal laws or regulations nullified within the boundaries of this state.”

HB382 cites Montana’s “compelling interest as a sovereign state” and provides an historical explanation of what the public and Founding Fathers understood at the time the U.S. Constitution was ratified — in particular the “commerce,” “general welfare” and “necessary and proper” clauses.

The federal government’s power to regulate commerce, for example, was meant to “regulate the buying and selling of products made by others and sometimes land, associated finance and financial instruments, and navigation and other carriage across state jurisdictions,” the bill states.

But the power to regulate commerce was not intended to include “agriculture, manufacturing, mining, major crimes, or land use, nor does it include activities that merely ‘substantially affect’ commerce,” the bill states.

Skees’ bill claims that the people and the state of Montana retain their exclusive power to regulate the state of Montana under the U.S. Constitution’s 10th Amendment.

The bill also claims that the Ninth Amendment “secures and reserves to the people of Montana as against the federal government their natural rights to life, liberty, and property as entailed by the traditional Anglo-American conception of ordered liberty and as secured by state law.”

To ensure that Montana’s “esteem and friendship” continues, the bill directs the nullification commission to notify other state legislatures of the act’s intent. It also calls for sending a copy of the act to the President and Congress.

A fiscal analysis attached to Skees’ bill notes that the cost of the commission cannot be estimated because the bill doesn’t provide details on how members are appointed, how often they meet, how they are paid and what agency would provide staff support.