Ed Emery is ready to send the federal government a message.
The first-term state senator from Lamar, Mo., believes the president and Congress overstep their constitutional authority over and again. It’s well past time, he insists, for the states to put an end to it.
“State government is the first line of defense against unconstitutional acts by the federal government,” he said. “Whether you call it states’ rights, whether you call it state sovereignty, whatever you call it.”
Frustrated by the expanded power of Washington, lawmakers in Missouri, Kansas and a growing number of politically conservative states have decided to ignore — and in many cases openly defy — federal law. They cite the U.S. Constitution for their actions, even as experts doubt their reading of the testy balance between state and federal power.
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The notion that a state can unilaterally void any federal law that it doesn’t agree with — known as nullification — has become a rallying cry for many conservatives.
It’s an idea embraced most passionately in the run up to the Civil War by Confederate secessionists, and reclaimed by segregationists in the 1950s and ’60s. It’s once again gaining popularity with the election and re-election of President Obama and, in rebellious counterpoint, the rise of the Tea Party.
“This is really a reaction over Obama … a kind of soft secession,” said Burdett Loomis, a professor of political science at the University of Kansas. “Texas isn’t going to secede. Kansas isn’t going to secede. Missouri isn’t going to secede.”
But, Loomis said, many legislators refute the notion that when the federal government makes a law “it should be enforced.”
Consider, for instance, a bill introduced in Missouri last week that would make it a Class D felony for a federal agent to enforce any new restrictions on gun ownership. Eleven senators, including Emery, signed on as co-sponsors. A similar bill has 60 co-sponsors in the Missouri House.
Proponents point to the 10th Amendment of the U.S. Constitution, which says any powers not delegated to the federal government “are reserved to the states respectively, or to the people.”
“This (legislative) session we will stand together in the State of Missouri to tell the federal government once and for all that it will not be allowed to run roughshod over the United States Constitution,” said House Speaker Pro Tem Jason Smith, R-Salem.
In Kansas, lawmakers expect to take up legislation this year that would bar airport screeners from touching an airline passenger’s private areas without probable cause. Another expected bill would make a firearm manufactured in Kansas exempt from federal regulation.
State Rep. Brett Hildabrand, R-Shawnee, proudly displays his support for state rights on his desk with the small flag with the snake reading, “Don’t tread on me.”
He concedes that the supremacy clause in the U.S. Constitution means that federal law trumps state law. But he believes there is a caveat that provides that the federal laws could be voided if they are not carried out in accordance with the Constitution.
“For a long time, the 10th amendment has been ignored,” Hildabrand said. “With the rise of the Tea Party, there’s been a focus to go back and look at the 10th amendment and what it really does say.”
State Sen. Mary Pilcher Cook, R-Shawnee, said Obama’s health care plan coerces Kansans into a health care system that they might not want to be part of. And she sees that as a violation of their constitutional rights.
“The people of Kansas do not want a command-and-control government,” she said. “They want a limited government.”
Federal law supreme
In the eyes of most legal scholars, however, the efforts are unconstitutional.
“The states can’t simply choose to defy and override a valid federal law,” said Allen Rostron, a professor of constitutional law at the University of Missouri-Kansas City.
The U.S. Constitution deems federal statutes “the supreme law of the land,” Rostron said, a fact that was tested and confirmed by the Civil War. Attempts to invoke state supremacy have been defeated over the years by generations of U.S. Supreme Court decisions.
That legal view hasn’t quelled enthusiasm among conservatives across the nation. According to the National Conference of Legislatures, forms of nullification legislation have been introduced in two dozen states in recent years.
In Missouri last year, the House approved legislation making it a crime for any government official in the state to enforce the Affordable Care Act, the Obama health care plan. Another bill went further, attempting to amend the state’s constitution to prohibit Missouri from recognizing or enforcing any federal law.
This year, Emery has crafted a bill creating a state sovereignty commission to identify federal laws that infringe on states’ rights, an idea that harkens back to a similar board established in Mississippi in 1956 and aimed at preserving segregation.
The push for nullification has been bolstered by national groups like the Tenth Amendment Center, a research and advocacy group based in Los Angeles. It was quick to praise the Missouri legislation criminalizing enforcement of new federal gun laws.
“It’s good to see these folks in Missouri go all the way in support the 2nd Amendment without any ifs, ands, or butts,” said Mike Maharrey, the group’s communications director.
Challenging a law
Rostron, the constitutional law professor at UMKC, said lawmakers who disagree with a federal law could pass legislation saying state officials don’t have to enforce it. In fact, they have.
Some states used that approach, for example, after legalizing medical marijuana and forcing the federal government to enforce its laws without state help.
Or, he said, if someone believes a federal law is invalid, they can challenge it in court.
But they can’t stop the federal government from enforcing a valid law.
Time and again, U.S. Supreme Court rulings “made it indisputably clear that if there is a conflict between valid federal law and a state constitution, the federal law prevails,” wrote Stephen McCallister wrote in a recent article for the University of Kansas Law Review.
Emery doesn’t deny that courts have repeatedly rejected arguments in favor of state sovereignty.
“Just because a court makes a ruling doesn’t mean that’s the end,” he said. “I still disagree, and I will contest through lawful means like writing legislation. Part of the beauty of our system is that you never have to give up on an idea.”
But even if none of these nullification efforts immediately prove successful, Emery said they jumpstarted a conversation about the role of government and the Constitution.
That doesn’t mean the discussion is harmless, Loomis said.
“One of the great dangers these days is that the legitimacy of government action becomes highly suspect,” he said. “I don’t think we’re at a crisis, nothing like the Civil War or the fight over civil rights, but I do think it is potentially dangerous.”