A Constitutional Law Lesson for Steve Benen

On Monday, the Texas House of Representatives passed a bill that would bar state officials from enforcing any new federal gun laws.  Via Kevin Drum, I see that the MaddowBlog’s Steve Benen calls the bill “crazy.”

In this case, Texas’ nullification bill effectively hopes to freeze the status quo of federal gun laws in place indefinitely. The state is prepared to honor federal laws as they currently exist, but if policymakers in Washington expanded current laws in any way, Texas would ignore those changes — based on the “because I say so” theory of modern jurisprudence.

It wouldn’t matter if new federal laws are entirely constitutional; it wouldn’t matter if the new laws saved lives; it wouldn’t matter if the new news enjoyed broad, bipartisan support. Under the proposal pending in Texas, current laws have reached a ceiling, and any effort to raise that ceiling must be ignored.

This is, of course, crazy. Whether Texas likes it or not, states can’t pick and choose which federal laws they’ll honor and which they’ll ignore.

I can’t say at this point whether the pending bill has a chance of passing, though it seems like the sort of thing Gov. Rick Perry (R) would like to sign. But I can say the bill, if it becomes state law, would not withstand a legal challenge.

I’ve got some news for Mr. Benen.  States, in fact, can “pick and choose which federal laws” state officials will enforce, and state refusals to enforce federal law would most definitely “withstand a legal challenge.”  In fact, they already have.  See, e.g. Printz v. United States in which the Supreme Court held that state officials could refuse to implement a federal background check requirement for the purchase of new firearms.  Under Printz and New York v. United States it is well established that the federal government cannot force state officials to implement federal laws.

Whether or not this specific bill is a good idea, this is not a “nullification” bill.  It would not prevent federal officials from enforcing federal law within the state of Texas.  As described by Benen’s source, it is simply a bill that says state officials will not enforce certain federal laws — and that is something states have every right to do.

UPDATE: Here’s a link to the bill text. A few portions of the bill seem ambiguous to me, but I don’t see anything in the bill that would to prevent federal officials from enforcing federal law — and any state law that purported to prevent federal officials from enforcing a constitutional federal law would be preempted under the Supremacy Clause.

SECOND-UPDATE: Benen has a follow-up post in which he acknowledges the point and (with the help of David Gans) summarizes what states can and cannot do when they disagree with federal law.  I think Gans is largely correct, and it’s unquestionably true that some state legislators are overreaching.  I’d add two points.  First, the idea nullification did not begin with Calhoun.  We should not forget about the Virginia and Kentucky Resolutions.

Second, I don’t know what Gans is thinking when he says “Even though Printz leaves state and local governments some discretion, there is a strong argument that the Supremacy Clause forbids a state from singling out a class of federal laws it disagrees with and refusing to enforce them.”  Of course states can do this.  So, for instance, the state of Montana can agree to enforce all federal laws save that requiring local law enforcement to conduct background checks for gun purchasers, or whatever else.  If the feds want to limit the ability of states to pick and choose which federal laws to enforce, they have options — such as conditioning the receipt of federal funds on state cooperation.  State judges also have little choice but to apply applicable federal laws in relevant cases — as when federal law provides a defense in litigation.  But I am aware of no precedent that would suggest states don’t have the ability to “single out” those federal laws they refuse to enforce.


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