This election season the people will be voting on more than just office holders. There are 176 ballot intiatives and referendums in a total of 38 states. The fascinating part is that number of them which are either constitutionally invalid or simply irrelevant even if passed.
In Alabama, Amendment 6 to the state constitution would prohibit individuals or businesses from being compelled to participate in the health care system. However, this would do nothing to change the federal tax code that will impose a fine on those who don't have any insurance, so even if passed, would be irrelevant.
In Arizona, Prop 6 would declare state sovereignty over all territory within their borders, essentially kicking the federal jurisdiction out. This violates any number of federal constitutional provisions and congressional acts including the Supremecy Clause, Eminent Domain, the Antiquities Clause, not to mention making it impossible for the Border Patrol to function on the Arizona/Mexico border. It would also technically reclaim the Native American federal reservations to Arizona, though it does not appear that was intended. It is possible this could be considered sedition.
In Florida, amendment 1 would also absolve businesses and individuals from obtaining healthcare. Again, this would in no way invalidate the federal penalty tax, and still is in violation of the Supremacy Clause. There is also the potential unintended consequence of creating more uninsured people when businesses view this as an permission to no longer provide insurance to their employees.
In Idaho, HJR 2, a constitutional amendment proposed by the legislature is billed as a declaration of the right to hunt and fish. However the wording appears to actually be designed to prevent environmental protection of land and water. Again, the Supremacy Clause and Antiquities Act are the first two federal acts invalidating this proposal which spring to mind. The acts creating the EPA would also seem to be relevant.
Wyoming, not wanting to be left out, has before its people Amendment 1 preventing the implementation of the health care law, and Amendment 2 declaring the right to hunt and fish.
On the liberal side of the spectrum, Colorado's Amendment 64, Washington's I-502, and Oregon's Measure 80 all would result in legalized recreational marijuana, if passed. The US Attorney General's office has already made it clear this would be in violation of the Controlled Substance Act. While advocates argue the commerce clause does not apply to activity that remains entirely within the border of the state, it is unlikely they would win such a court case, after the recent ACA ruling in which the four liberal leaning judges supported Obamacare on a commerce clause argument. And, again, there is that pesky Supremacy Clause
This would be humorous if not for the fact that so many of these were put forward by the legislature which means the people responsible for governing us appear to have an incredibly poor understanding of our government. I could break down each item for its individual, multiple contradictions of federal law and the constitution, but ultimately there is only one clause of the US Constitution these legislators need to know to understand why they can not do what they are trying to do: the Supremacy Clause:
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, anything in the constitution or laws of any state to the contrary notwithstanding.
That doesn't seem to be difficult to comprehend. Nor is it some late addition to the document, it is original text which every single state has knowingly ratified. Yet every year we have to struggle with so called "states rights" advocates who want to suggest that the state law is in some way possessing a higher authority than the federal. It does not, and if it is ever allowed to, that would undermine the very structure of our nation and constitution. If they ever attempted to use police or national guard powers to defend these acts, that would be the definition of sedition.
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both
Yet these are legislators and lawyers making these propositions. How did we come to this? How did we arrive at a situation wherein those tasked with, and oath bound to, protect and maintain our nation not only do not understand its construction but appear to be bent towards its undoing? And when the people and/or courts inevitably thwart these attempts, what will their next step be?
JD Adler
