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SB 1433 Would Create Foggy Future for Arizona

Arizona Sen. Kyrsten Sinema is opposed to SB 1433 on the grounds that it is "crazy."
As Sen. Russell Pearce’s SB 1433 Fails, Then Reportedly Passes, Then Fails Again, Arizona Skirts A Constitutional Crisis

By John Guzzon
Modern Times Magazine .com

Editor's note: This is a revised copy of an article that was originally published March 8, 2011. Where needed, editor's notes will also provide clarification.
Read update story here.

March 8, 2011 — The State of Arizona moved closer to establishing a committee that would attempt to nullify federal laws believed to overstep the bounds of the federal government after the bill died on Thursday, then was reportedly revived and passed along to the House Friday, before officially failing again on the Senate floor March 9.

Arizona Senate Bill 1433 would establish a “Joint Legislative Committee on the Nullification of Federal Laws” consisting of 12 people: six appointed by the Senate president and six by the speaker of the House of Representatives. No more than four of those selected by each leader could be of the same political affiliation.

If passed by the Senate, House and signed by Gov. Brewer, the state law would be the first attempt by a state to force its Tenth Amendment rights upon the federal government since the civil rights era.

Many who oppose the bill said it is clear that Senate President Russell Pearce used all of his political muscle to work the bill.

(Editor's note: Confusion as to whether the bill passed late Friday caused many to assume it has moved onto the House. Read update story here.)

“Four Republicans switched their vote from no to yes to get the bill through which is interesting because I think the four people who switched their votes still hate the bill. But, there is politics going on here. The bill is sponsored by Lori Klein but it is widely believed to the Senate President’s bill. What he did this year when he became Senate President is he farmed out his bills to the caucus. When one of his bills goes down, he gives a big speech on the floor and gets real upset about it, which is what happened when the bill went down,” said Sen. Kyrsten Sinema, democrat, district 15. “I wasn’t surprised to see it come back because my guess is he had a talking to with some of his members and it worked on four of them.”

SB 1433 initially had trouble because republican support was weak. But leadership applied adequate  pressure to change their opinion as the bill apparently passed by a 16-11 margin late Friday after being defeated 18-12 Thursday, according to sources. Details on the vote were not available when this story was completed, although one Senate staffer confirmed that the bill was labeled as “transmitted to House” on the Senate computer system.

Sen. Russell Pearce did not answer queries from Modern Times Magazine.

(Editor's note: It was revealed to Modern Times Magazine Tuesday morning by Senate majority staff that the reconsideration floor vote had not yet occurred and would occur later in the day. Mike Philipsen, communications advisor for the Senate majority staff, confirmed via e-mail Tuesday night that the bill failed by the same margin it did Thursday: 12 to 18. Read update story here.)

“The sponsor has been working the bill hard — she asked me to change my vote more than once — and she has the will of the President on her side so I will not be shocked if the proponents are able to get to 16,” Sen. Steve Yarborough, republican, district 21, said Friday morning.

Sinema said Pearce and his allies are well aware that SB 1433 will most likely be immediately challenged and might never be enacted.

“This is the mother lode bill. This is the one that allows them to nullify all federal laws. But they know that this bill could never be implemented. They know it will be immediately  struck down by a federal court and they know that the federal government has pre-emption over state laws,” Sinema said. “You cannot have a panel of appointed people make decisions about which federal laws are appropriate and which are not. We already have a panel that decides which federal laws are appropriate and which are not. It is called the federal judiciary. This is crazy.”

Paul Bender, Arizona State University law professor, said the bill is fatally flawed because it seeks to solve problems which already have a working solution.

“SB 1433 is entirely invalid. State legislatures can disagree with federal law, they can complain about federal law, but they cannot nullify the legal effect of federal law. Only the courts can do that. The troubling thing about SB 1433 is its attitude of disrespect for the fundamental principle of U.S. government, which has served us pretty well over the years, that we are one nation — not 50.  You aren't a nation, in a meaningful sense, if parts of you feel free to disregard decisions made by the nation as a whole, when they disagree with them.” Bender said. “The Constitution was adopted because the framers, and the people who voted to ratify it, understood that. A majority of the members of the Arizona legislature apparently do not.”

Sinema and Bender agree that even if the nullification committee would rule to disregard laws such as the National Healthcare Bill, a person or corporation would be susceptible to the force of the federal government regardless of what the state says.

“No legitimate business in the state of Arizona is going to stop following federal laws because a bunch of crazy people at the state legislature told them they don’t have to anymore. To do so jeopardizes their business,” Sinema said. “Why are they doing it? Because they are crazy. They want to play chicken with the federal government here.”

Bender said if the state attempted to stop enforcement of federal law, a swift federal action would result even with conservatives in the seats of federal power.  

“State officials would also feel an impact if they tried to interfere with the enforcement of federal law. This would likely be true, even during a conservative federal administration,” Bender said.

Sen. John McComish, republican, district 20, said SB 1433 is a futile exercise.

“Basically, the state legislature does not have the prerogative to declare what is Constitutional. If we did what this bill proposes it would just be an exercise with no authority,” McComish said.

With SB 1433 now in the hands of the House, the next movement will come when it is assigned to a committee and if it passes out as expected, it will face another test on the floor of the House. Sinema predicted it might move like SB 1070 did last year — delayed until the very end of the session, then pushed through at the deadline.

Bryce Shonka, co-executive director of the Tenth Amendment Center, said even if SB 1433 does not make it out of the House, it is a great statement for the tenther movement.

“Everything that gets these ideas into people’s minds is a victory,” Shonka said. “The bottom line is when the establishment brings attention to these ideas, it doesn't matter how hard it is attacked. Average folks who can think for themselves say, I want to check this out.”

Steven Gonzales, professor at the Phoenix College of Law, said SB 1433 and legislation like it are relics of a past that should be forever discredited.

“My personal views on the Tenth Amendment and much of the state's rights activities is that I find it ranges from utter nonsense to near treasonous language from people who know very little about the Constitution or its history but imagine the opposite. The arguments of those pushing these bills are identical to those of the antebellum South. They fail to grasp that the US was created by 'we the people' and is not a compact of states,” Gonzales said. “They are also guilty of gross hypocrisy by adhering to strict interpretation only in issues such as civil rights but not on property issues such as Fifth Amendment takings thus revealing their underlying political motives.”