Idaho attorney's general office says nullification violates state, federal Constitutions

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.

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Don't confuse the Conservatives...

Don't confuse the Conservatives with the law or the facts. They will believe what they want to.

But if you get enough states with Conservative majority

those laws and facts can be changed. Thus the goal.


There are only NINE people who can decide if a federal law is unconstitutional. And none of them are in any state legislature.

Right on!

And those 9 people are called the U.S.Supreme Court; although there are some that think they are the ultimate authority.

Legislative Dist. 3

Would you believe it -- one of the co-sponsors of the legislation is from the same legislative district (No. 3) as Phil Hart! Doesn't that just say it all. There must be something in the drinking water up there to tend to mental incapacity.

Well, duh

Way back in 1787 the organizers of the Federal Convention figured out that the Articles of Confederation were completely unworkable as a foundation for a national government. One of the reasons for that was because any state could nullify a federal law by using its sovereignty to declare the law invalid within the state's boundaries.

So, we've got a Constitution, approved by the states, that makes federal law the law of the land. No legislature can legally invalidate a federal law. Now, I'm just a regular guy, not a politician, not a lawyer and I know that legislative nullification is unconstitutional. What gives with our legislature?


states are not sovereign, people are sovereign. Its right there in the amendments to the Constitution.

Regarding Sovereignty

The Constitution is built upon the idea of division of sovereignty between the states and the federal government. Individuals, states, and our nation are all sovereign but this sovereignty is relative to the other. The individual is ultimately sovereign to the point where he has not given some of his rights to the power of government (such as local and state laws), and a state is sovereign to the point at which it gives power to the national government through the laws of the Constitution, and the nation is sovereign from rule of any other nation or international body (treaties being an instance where a nation may voluntarily give up some of its sovereignty).

You're correct, but...

My comment regarding sovereignty was in reference to the Constitution's predecessor, the Articles of Confederation. The federal government was much, much weaker and the states were much more powerful. It was a workable solution for a small government with common interests, but could not withstand the diverging interests and unbalanced population density as the nation grew.

You like big buts and you cannot lie?


Happy Jesus Thing and a Chinese New Year

Not the legislature

but a few warped minds in the legislature looking for some free PR time without having researched their proposal. Rep. Boyle is a joke but then again she represents her constinuency which doesn't say much for that legislative district.


I guess that means the committee will have this Wednesday off. Eh?

plan b

Make a simple resolution that the Idaho Legislature does not agree with the Health Care Reform Act and supports the legal case.

Why waste that time...

How about they meet and come up with some ideas on how the State can create an atmosphere for job creation (notice I did not say "create jobs" but rather help the atmosphere for job growth) and better ways to funded essential services in this state? Why waste time on debate over this issue. It is in the courts, the courts will do their job.

Mission Impossible

Resolutions are usually minimal time. But I get your point.

The impossible task for a state is to "create" even the atmosphere for job creation.

Creating the atmosphere- What is that?
Low taxes? Nevada should be thriving.
Higher education? Massachusetts should be in surplus budgets.
Clean water? Lots of public land? See Alaska.
Subsiding start-ups? Who's paying for that?

Sometimes you just have to sit still and wait out the storm.


A government can set policy that is more friendly to the creation of jobs. Case in point - the R's don't want taxes raised because it will hurt the economy and businesses won't hire, thus if you keep taxes low it helps the private sector create jobs. There are lots of policies that the feds or a state can set that will help the business climate, or hurt it.

It is ironic that R's keep saying that Obama has failed for not creating jobs, but then turn right around and say a government cannot create jobs. Last time I looked Obama worked for the government.

So which is it? If a governement cannot create jobs, nor can they create "even the atmosphere for job creation" why do the both sides of the aisle even run on that issue - both the R's and D's do it.

No...there are things that Otter and the Legislature can do to help right now...but they are doing nothing.


I'm all ears.
Yes there are policies that hurt or help businesses.

Again, what can a legislature do to directly help create that environment?
(Preferably with an explanation)

What can they do to directly cause me to hire someone?

Here's One

They are in the process of doing it now with HB 19 (the "Idaho Compassionate Use Medical Marijuana Act" - which by the by someone is not paying attention to their acronyms - ICUMMA, I CUMM A - when stoned, lol). The bill, if passed will create many new jobs both in the public and private sector. These types of businesses are extremely lucrative by the way. The bill sets up two non-profits in three areas of Idaho at first, but then a for-profit may also request to become a certified provider of MJ. Sweet.

not really

For one, I can't believe that acronym made it through the Statesman censor.

What ever jobs you think are being "created" are already there.
The wacky weed doctor is already working as a doctor handing out scripts for people addicted to pain killers. Or the "clinic" is already in existence.

The grower is already growing and the user is already using.

The bill doesn't prohibit DEA from shutting down these "centers" for federal distribution laws.... so who is going to be stupid enough to operate a permenant establishment? Oh yeah, someone who is stoned.

Not more than 2oz in a 28 day period?

Not likely to make much difference, other than the H&W beaucrats to adminsiter the program.

Hey, lets legalize pimping. That can create jobs too...
Oh wait, that biz is already working without the gov help!

plan c

How about plan c which really should have been plan A? Which is Otter and crew worry about creating jobs and the Idaho economy and less about nullification, which has no hope of succeeding. Last year our wonderful legislature did nothing. Why are we allowing them to do it yet again, a second year in a row?

Why let them do nothing again?

Because were afraid they'll do something. Let sleeping dogs lie (as in sleep, that is), and let them gnaw on the bones of nullification, conscience laws, and challenging the tenth amendment.

Someone will write or speak..

that this is just one person's opinion or that will add the Supremacy Clause to the list of items they want to strike from the Constitution. Thomas Woods sold a lot of books by promising the Tea Party the Holy Grail of states' rights. Now I guess the party is over, but some will keep on trying.

You are right...

Proletariat. Just as there are fools out there wasting time trying to prove Obama is not an american citizen or the holacaust did not really happen.

Who writes these things

Murph, the AG's office did not "say" (or write)nullification violates our constitutions.

Any good attorney knows only the Court can "say it violates the law".

Murph didn't write the headline

that was the editors writing. I know, I've been there, had that happen to me too.

By the way, no court is going to "say it violates the law" in regards to nullification since there is no law for or against it, rather the courts have said there is no basis for nullification in the constitution and rejected it.

in Crayons

"the Court" means the US Supreme Court.
They either are (or are not) going to say it violates the law. As in "the law of the land" -- the Constitution.

It reads like Barker wrote the headline.

Jurist have a crafty way

of making the case moot with out actually ruling on the legality of it. It's called no "legal standing". In the case of "nullification" the SCOTUS has never said that the concept violates the law, just that the states have no standing under the constitution to pursue nullification.

Fire Brian Kane

IF he can't support our views, he should be fired. What are the Feds going to do to force us to buy their socialist agenda and obamacare? We close our borders to those Obama liberals and we do what is best for Idaho. The leftest Statesman is just posting this stuff to try and change our minds from the truth.

What? Since when is it Brian Kane's job to support your views?

His job is to give a legal opinion based on his understanding of existing law. You may or may not agree with it, but it is not his job to support YOUR views.

His Job

No offense to the posters, but Mr. Kane is just doing his job and he is right. As conservative as I am, it is his job to interpret the actions of our State as it relates to any federal issue and despite what people think, we are bound by the laws of the United States, to the extent they are constitutional, in the event they come to fruition.

Its All About the Lowest Common Denominator, Idaho Voters

While driving to the grocery store yesterday, I found the topic on NPR a little boring, so I tuned in to Rushbo. He was just taking a call from a guy who at first sounded like he might have something on the ball.

The guy says (paraphrasing), "I fancy myself an independent. I really had hopes for Obama. I thought that with the tremendous popularity he had upon his election he could be one of our greatest presidents - really, one of the greatest - if he only accomplished half of what he promised."

He rails on for a while, and Limbaugh asks him, "What are some of the things you remember Obama promising?" The guy couldn't think of one thing... nothing.

Limbaugh again tries to shift the conversation and eventually asks him, "Did you vote for Obama? Don't tell me what you think I want to hear, tell me the truth... did you vote for Obama?" The guy says, "No, when I got in the voting booth, I just couldn't do it."

These are the kind of people Idaho's legislature are trying to appease.

Same show?

Wasn't that the same show on which Limbaugh mocked recommendations to eat more vegetables and exercise as "junk science" because Jack Lalanne (1915 - 2011) ate well and exercised, but still died?


Jack made it to age 96, el Rusho will be lucky to make 65 the way he smokes cigars.

The Supreme Court...I'm confused

So, if the Supreme Court were to rule in our favor on the state lawsuit against Obamacare, we will acknowledge their authority on the issue. At the same time, with the nullification argument, we are saying they do not have the authority to make rulings on constitutional issues? Does anyone else think we are arguing both sides?

I think that you're a little confused.

No, "we" are not arguing both sides because "we" are not saying that the Supreme Court does not have the authority to make rulings on constitutional issues.

We aren't arguing about the Supreme Court, about STATES


It's Chinese New Year now. Unfortunately it's been recalled.

How Far We Have Come and Strayed

First of all, any lawmaker, State, or even Supreme Court Justice can violate or ignore the Constitution if no one keeps them in check. In this case, the argument is that the fed has greatly overstepped its bounds.

Secondly, the Supremacy Clause of the Constitution does NOT say that federal law is the supreme law of the land but that the Constitution is the Supreme Law of the Land (just read it). If the fed has violated the Supreme Law of the Land by usurping state power over healthcare then the state has every right to thwart that effort. The states created the federal government and the Constitution, not the other way around. Therefore, federal law is ONLY supreme so long as it is Constitutional.

James Madison's and Alexander Hamilton's words mean more today than they did then:

"But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm... But what degree of madness could ever drive the federal government to such an extremity." - Madison, Federalist No. 46

"But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such." - Hamilton, Federalist No. 33

Whole text of Federalist 33 in context follows:

"But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed." - Federalist No. 33

When you quote the Federalist Papers

be aware that our founding fathers found them to be wholly inadequate in unifying the U.S.A. and replaced them with the constitution only after much soul searching and definitive argument. Every state then signed on to the constitution making the federalist papers obsolete. Our founding fathers themselves repudiated the federalist views and replaced them.

do you even know what the federalist papers are?

what you are talking about is the articles of confederation, the compact between the states that formed the legal basis of the union before the constitution was proposed and ratified.

the federalist papers are a series of essays written by the crafters and supporters of the proposed constitution, which form the arguments in favour of replacing the articles with the constitution.

therefore, when you quote the federalist papers, you articulate exactly what it was that the states understood the constitution to mean.

by ratifying the constitution, the states were agreeing to the interpretation outlined in the federalist papers which makes them the opposite of obsolete--igt makes them more relevant than anything the SCOTUS, congress, or president have to say about the meaning of the constitution.

NO BUZZZZZ. We trashed the entire mess and started over.

They AREN'T the Declaration of Independence and they didn't even work, making it nearly impossible to make things work. We tried it, we wrote a Constitution and MOVED ON.

We didn't have very good deceased people teaching some of you, did we?


It's Chinese New Year now. Unfortunately it's been recalled.

Instead of worring about the

Instead of worring about the health care no one wants. Maybe we should worry about jobs.
The GOP says no to everything but have no plan of action.
The GOP di not like the SS that Roosevelt put in to effect nor did they like medicare that LBJ put in in 1964. Let me see. What has the GOP done for the people?


of health reform has already been tried by other states, who have all lost in court. The Idaho GOP is just using this as another obstructionist tactic.

Idaho has a huge number of uninsured and people on food stamps. Otter has no jobs plan and no health care plan, but he was first at the trough to sue the feds over reform constitutionality. Now this nullification action just makes Idaho look even dumber.

If he thinks businesspeople don't take these things into consideration when they are looking at places to move to or expand, he's wrong. Idaho has been very poorly portrayed in the national news for the last couple of years thanks to him and his legislative pals. That's what you get when the Idaho GOP are the inmates running the asylum.

I would argue that this isn't a GOP tactic...

but rather an effort by one faction of the GOP. There is one faction of the party that believed what they read in the book and worked with people from the Freedom Foundation to draft legislation. I think many members of the GOP are probably breathing a big sigh of relief because this opinion gives them a legal argument to to avoid action on the bill.

I would argue this is bigger than parties

Forget parties for a second. This issue is about a fundamental belief that government can do whatever it wishes or that it must follow the law created by the people to limit it in its powers. Whether you agree with the first point or the second, that is the debate at hand. There are many on both sides of the aisle all across America (and many more still that don't have any idea). Whether someone is a member of the GOP or Dems or those with other labels (whatever they may be), they can use government to enforce their views on others - or not. Democrats in the south fought for states rights only decades ago (and some still do). Perhaps there are more in the GOP now but I don't think the parties are really responsible for pushing state and individual rights as much as seeking power and influence. It's sad really what parties have done to our government.

I seem to recall...

... from history class that this question was settled 146 years ago or so. See there was this guy named Lincoln who sent troops... ah never mind. Why bother.

I remember Abe! He made Southern Rock possible!


Happy Jesus Thing and a Chinese New Year


Well, that is great. Thank you Mr. Kane for pointing out the legally obvious to the legislatively challenged. Now, how about informing the AG that suing the federal government and forcing a repeal of the health care law will end with the same result (like it has in the majority of circuit courts). It might be a great way to stop wasting our tax payer time and money fighting something that can't be repealed or declared unconstitutiona, and it could possibly refocus our collective efforts back on what the heck we are going to do with the budget hole the legislature got us into.

Let the Demonizing of the

Let the Demonizing of the legal opinion by the states conservative lead attorney general begin.

The GOP mafia and extremist social conservative's like Wayne "jerk water" Hoffman who like's to think he knows the constitution and federal law will attack and dehumanization the man who signed the opinion.......

It is amazing that adults elected to state office are so blatantly ignorant about the law of the land and the constitution.


The Attorney General took it easy on these guys. What they propose is the first step toward secession, and the dissolution of the United States of America. This is settled law, both in courts and by the gun (see US History, 1861-1865). Wayne Hoffman, Monty Pearce et al should read those Constitutions they're forever waving in someone else's face. A more direct opinion would have labeled them as such, as the secessionists whose cause they are championing.

Districts 3 and 9

the legislators from 3 and 9 leave one to question the wisdom of the voters of those districts: 3 -- is Hart. Barbarei and Vick while 9 is Boyle, Pearce and Denney -- no further explanation needed -- just plain not carrying a full load.