February 19, 2009

Arizona Asserting Sovereignty

Justin Katz

Of all the notions that spread from state to state, wouldn't this be a breath of fresh air?

Whereas, the Tenth Amendment to the Constitution of the United States reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"; and

Whereas, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

Whereas, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

Whereas, today, in 2009, the states are demonstrably treated as agents of the federal government; and

Whereas, many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

Whereas, Article IV, section 4, United States Constitution, says in part, "The United States shall guarantee to every State in this Union a Republican Form of Government", and the Ninth Amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"; and

Whereas, the United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

Whereas, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States.


Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring, that:

1. That the State of Arizona hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

2. That this Resolution serves as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

3. That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

4. That the Secretary of State of the State of Arizona transmit copies of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state's legislature and each Member of Congress from the State of Arizona.

I know nothing about Arizona politics, so this may or may not have a life beyond its introduction, but it's nice to know that there are folks out there with this sort of goal in mind.

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You don't need to know anything about AZ politics to know that this bill is DOA. Has it been passed and signed by the gov or is ir just a bill.

The first part of the resolution is totally unobjectionable. Congress can't exercise powers not granted to it. No problem.

Part 2 is similarly unobjectionable. AZ won't comply with federal orders that exceed the scope of federal power. The question, however is who gets to decide. It ain't AZ.

Part 3 is a little more complicated. The first part seems to be consistent with Printz v. US and NY v US, but the second part is claiming that the US can't condition federal spending on AZ's compliance with US law. (despite the Tax and Spend power and the Supremacy clause). That's a pretty radical claim. This would mean that the Elementary and Secondary Education Act of 1965 (requiring that school districts that continue to engage in de jure segregation receive no federal funds) is void. I don't think so, and I don't think any federal court in the nation thinks so.

I'm not sure, Justin, why you think this bill is a good idea.

Posted by: Thomas Schmeling at February 19, 2009 8:35 PM

On reflection and closer reading, both parts of Part 3 are problematic. It would prohibit or repeal federal laws which

a. require states to comply under threat of civil or criminal penalty.

b. requires states to pass legislation or lose federal funding.

It seems point (a) would nullify Congress' express powers (A state could not be penalized for violating the Voting Rights Act or statutes regulating interstate commerce, etc) As to point (b), it would seem to overturn South Dakota v. Dole and other cases holding that Congress can condition federal spending on action, which might require legislation, by the state.

I don't think a state law can do either of these things.

Posted by: Thomas Schmeling at February 20, 2009 7:50 AM

The State Sovereignty Movement is spreading from stae to state -


Posted by: PDM at February 20, 2009 8:14 AM


I think you're reading a little too much into what this particular piece of legislation actually does. As I read it, section 2, is a "notice and demand" that the Federal government show some restraint in its exercise of power, section 3 is a request/demand that the Federal government to end all coercive mandates (whether their intent is aligned with Constitutional powers or not), and section 4 is a list of which Federal officials are to be notified of the requests/demands being made. In other words, I don't see where there's any substantive action or change in the law taking place. The question is what the follow-up action would be, if the requests/demands are ignored.

Posted by: Andrew at February 20, 2009 9:51 AM


I guess what you say is right: in itself this is a statement of principles without legal effect. I was assuming that it would involve the "follow-up action" you mention.

An interesting point that I missed before is that the resolution refers to the federal government as "our agent". Does "our" refer to the state legislature? That would be a novel interpretation of the nature of federal power, at least after the 17th Amendment.

Posted by: Thomas Schmeling at February 20, 2009 11:18 AM
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