By Brian Murphy
Brian Kane, an assistant chief deputy in the Idaho attorney general's office, offered a four-page opinion on the validity of nullification. (Click here to read the opinion.)
He concludes that "there is no right to pick and choose which federal laws a State will allow."
Some Republican lawmakers are pushing a nullification bill that would stop state departments and agencies from implementing aspects of the federal health care reform. The proposal is expected to be introduced into the House State Affairs Committee on Wednesday.
Rep. Bill Killen, D-Boise, asked for an opinion on the concept of nullification.
The opinion was not specific to the legislation.
In the opinion, Kane concludes nullification would mean ignoring the Supremacy Clause in Article 6, Clause 2 of the U.S. Constitution and that it does not square with state office holders' oath of office or Article 1, Section 3 of the Idaho Constitution, which reads:
"State inseparable part of Union. — The State of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land."
Kane writes that the "courts have expressly rejected nullification" and that "nullification as defiance of federal law or enactment is inconsistent with a state officer's duty to act in conformity with the federal and state constitutions."
He does writes that "nullification, if meant as a term through which offending legislation or judicial decisions are overturned by working within the existent constitutional and legal framework, is permissible and encouraged by our system of checks and balances."
Rep. Judy Boyle, R-Midvale, who is a co-sponsor of the proposed legislation, said the opinion will not impact her decision to bring the bill. "Not in the least," she said. "We have attorney general's opinions all the time."
Said Monty Pearce, R-New Plymouth, one of the bill's authors and most prominent proponents, said: "It's only an opinion. Their interpretation is different than ours."
Pearce said the refusal of the federal government to intervene in California's medical marijuana law is validation that states have ultimate control.
"No matter what they say, the states are the last voice. We have the final say on the constitutionality," Pearce said.
Wayne Hoffman, the executive director of the Idaho Freedom Foundation, said the Kane opinion was offered without having read the proposed legislation.
"We've been very, very careful about how we approached this issue," Hoffman said, adding that it is within a state's legislature's rights to direct state agencies to not do something.
The bill instructs state departments and agencies not to begin any implementation of the health care reform.
Killen said the opinion is very clear — "a slam dunk."
He said if every state started making its own laws and deciding which laws to follow, "we wouldn't be the United States. We'd be the disunited States."
More reading on nullification:
• The Statesman's editorial board weighed in
• Our original news story about the nullification effort and where it came from
• An AP story with more background, including its history in the United States
You can follow Idaho Statesman Politics on Twitter.