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Arizona taking up fight to limit federal government authority

by Ginger Rough - Feb. 4, 2011 12:00 AM

The Arizona Republic

From new laws targeting illegal immigrants to lawsuits over federal health-care reform, Arizona is seeking myriad opportunities to take back power from a federal government that it believes has overstepped its authority.

Proponents, including Gov. Jan Brewer and many GOP lawmakers, call their effort renewed federalism and cheer the push to reassert states' rights.

Opponents say it is nothing but a waste of time and money that serves only to distract voters from the real problems facing the state.

Either way, it's a fight that's picking up steam, both here and nationally.

Twenty-five other states are part of a lawsuit that says that the federal government cannot force people to buy health insurance. State lawmakers throughout the country are considering introducing or already have introduced legislation that would mirror Arizona's Senate Bill 1070. And local legislators say there is growing interest in further efforts to limit congressional spending and federal authority on such wide-ranging issues as elections and environmental inspections.

"Arizona is a leader in the movement, but now, we are seeing several states stepping up," said Brewer, who has made challenging the federal government one of her administration's top priorities. "We need to be able to make the decisions that control the destiny of our populations. And if the government would step back and give us the opportunity, we would do a great job."

Political analysts say there are a lot of reasons Arizona is a perfect breeding ground for such an effort.

These include its ongoing fiscal pressures, the increasingly conservative makeup of its state Legislature, a sympathetic Republican governor who rose to national prominence after signing SB 1070 and publicly denouncing the federal government's border-security efforts, and a population that, in many ways, still embodies and embraces an individualist, pioneer ideology.

"I think Arizona is just closer to our American heritage," said Nick Dranias, director for the center of constitutional government at the Goldwater Institute. "From what I've encountered, the people have more respect for and are closer to the frontiers that America once was." Legal arguments

Proponents of states' rights typically seize on the 10th Amendment to the U.S. Constitution as their legal basis for challenging the federal government. It states that "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."

But critics say the Constitution is clear that federal laws trump those made by states. [What part of "the powers not delegated to the United States by the Constitution" in the 10th Amendment don't they understand?]

They point to the Supremacy Clause and the Commerce Clause, both of which were the basis of the Department of Justice's lawsuit over SB 1070, the state's tough immigration law.

Article VI, Section 2 of the U.S. Constitution, the Supremacy Clause, says that federal statutes and U.S treaties are the supreme laws of the land and that federal law must prevail over any conflicting or inconsistent state law.

Article I, Section 8 of the Constitution, the Commerce Clause, gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." [In modern times the Feds say this gives them the power to do anything they feel like. But in the past the Supremes didn't agree with that]

Ultimately, many of the federal-states disputes will be decided by the courts.

State efforts

Arizona already has garnered international headlines with some of its states'-rights efforts, most notably last year's passage of SB 1070 and its recent introduction of legislation that would strip illegal immigrants' U.S.-born children of their citizenship and create a two-tiered birth-certificate process.

But there are a slew of other bills pending at the Arizona Capitol that also seek to directly or indirectly challenge the authority of the federal government.

"We are trying everything legally given to us ... to start back on the path to restore our country," said Sen. Sylvia Allen, R-Snowflake, who chairs the Senate's Border Security, Federalism and States Sovereignty Committee. "The states don't even have rights anymore. Private people don't have rights."

Bills before the Legislature include:

- SCR 1016, which proposes a convention to amend the U.S. Constitution so that any increase in the federal debt would require approval from a majority of the states. Arizona is one of six states that has introduced such legislation. The resolution was advanced out of the Senate's federalism committee Thursday.

- SB 1433, which creates a 12-member committee that could "vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the people to the federal government."

- HB 2077, which would require any "federal regulatory agency" to register with the appropriate sheriff whenever its representatives enter one of Arizona's 15 counties. Critics say such a bill could end surprise visits by mine inspectors, Environmental Protection Agency officials and others.

Sen. Steve Gallardo, D-Tucson, sits on the Senate's federalism committee. He says that state lawmakers have introduced measures like these before but that this is the first time they seem to be gaining traction.

He calls them "diversions" to distract attention from core issues facing the state.

"Our focus should be the budget," Gallardo said. "Our focus should be new jobs, the economy and health care, and what they are trying to do is get back on Congress."

Sen. Kyrsten Sinema, D-Phoenix, agrees. She says the state can ill-afford such measures, given its ongoing budget crisis. Arizona is facing a budget gap of $764 million in the current fiscal year and $1.15 billion in fiscal 2012, according to estimates from Brewer's office. [Huh???? Kyrsten Sinema is the biggest tax and spend tyrant in the history of Arizona!!!!]

"Every single one of them is going to lead to litigation, and we are going to lose because we are the only state in the country that somehow, for some reason, feels the need to challenge every part of federal law," Sinema said. [Kyrsten Sinema is a huge fan of big government and when Uncle Sam says bend out, Kyrsten Sinema is the first to bend over. Of course Uncle Sam usually gives you money when he orders you to bend over and Kyrsten Sinema wants that money]

Brewer said she is "very cognizant" of any potential costs stemming from the state's immigration and health-care battles with the federal government. She notes that she has created a legal-defense fund, which has raised money from private donations to fight lawsuits related to SB 1070, and says that signing on to the multistate health-care-reform lawsuit only cost a small amount: about $5,000.

The legal-defense fund has received nearly $3.7 million in donations, according to her office. The Governor's Office has spent more than $1.5 million of that money to date, her staff said Thursday.

Brewer said Thursday that the immigration and health-care battles are important because they "have huge fiscal impacts" on the state, but she stopped short of offering support for the other federalism efforts percolating in the Legislature.

Paul Bender, a constitutional lawyer at Arizona State University, says nullification efforts and attempts by states to ignore federal law will go nowhere. [Sadly he may be right because it seems like the Supreme Court will let the Feds do almost anything they want, even when the Constitution says otherwise]

"There is no trend that is going to be meaningful that lets states declare themselves independent of federal law," Bender said. But, he added, states could be successful in their challenge of federal health-care reform and the individual purchase mandate.

"There may be a trend to put some constitutional limits on Congress' legislative power," he said. "But the other? That is never going to prevail."