PHOENIX, November 4, 2014 – Today, voters in Arizona approved a ballot measure that follows James Madison’s advice to stop federal overreach. With 80% reporting, the tally held steady and increasing at 51-49%.
Approved was Proposition 122, a state constitutional amendment that enshrines the anti-commandeering doctrine in the state constitution. The language amends the state constitution to give Arizona the ability to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution.”
This language is consistent with the advice of James Madison, who wrote in Federalist #46:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. [emphasis added]
The amendment language mirrors the well-established legal doctrine of anti-commandeering. The Supreme Court has consistently held that the federal government cannot force states to help implement or enforce and federal act or program.It rests primarily on four SCOTUS cases – Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012).
Prop 122 places language in the state constitution that would empower the state to pass referendums, bills or use other legal means to end cooperation with an unconstitutional federal act. Supporters of the amendment say the provision allowing the people to vote to refuse to cooperate with federal authorities will prove especially significant.
“Basically, it will allow Arizonians to hold a state referendum on federal policy, something I don’t think has ever been done before,” one supporter said.
While the people of Arizona could hold a referendum like this now, by constitutionalizing the process, it now allows Arizonians to hold a statutory referendum on each issue instead of a constitutional referendum. A statutory referendum requires less signatures to get it on the ballot, something supporters say will allow grassroots groups to initiate the process.The money necessary to get a constitutional referendum on the ballot makes grassroots efforts difficult.
The amendment allows the people of Arizona to deal with unpopular federal programs like Obamacare, gun control, surveillance, and more. Supporters say one of the first issues they plan to target involves federal rules that allow Arizona Child Protective Services to hide important information. This has become an issue in several investigations alleging agency misconduct in the deaths of children under their care. CPS used rules tied to federal funding to refuse to disclose information. Amendment supporters say they will use the new process to forbid state cooperation with any federal rule that shields transparency.
Simply put, the amendment enshrines a process to refuse state cooperation with unconstitutional federal acts in the state constitution. As Judge Andrew Napolitano has said, refusing participation on a state level can make federal laws “nearly impossible to enforce.”
ROAD TO THE BALLOT
In 2012, Arizona businessman and TAC lifetime member Jack Biltis spent $1.2M to get signatures in order to get his nullification question on the ballot. While he came up short that first try, he and others – including the tireless Arizona Tenth Amendment Center team – worked to get the measure on the ballot a 2nd time.
The ballot measure was put on the ballot this year after the Arizona state legislature passed Senate Concurrent Resolution 1016 (SCR1016) in 2013. The state Senate passed it by a 16-12 margin, and then in the state House approved it 36-23. Bypassing a likely veto from Gov. Jan Brewer, the measure went to a vote of the people.
“Politicians in Washington are fond of passing far-reaching laws, but more often than not they depend on state and local governments – and state and local taxpayers – to implement them. This means that not only is Congress making life harder for Arizonans, they’re asking us to pay the bill,” according to the Yes on 122 website. “That’s why a bipartisan majority of the Arizona Legislature came together to pass Prop 122.”