Will State nullification laws be the ticket to rein in an unconstitutional Federal Government?

The Tenth Amendment movement may have some company. This has been the main battleground for the State’s rights fight and restoring sovereignty to the State’s. However, now that Iowa and Arizona have passed legislation allowing them to simply nullify federal law in its entirety that the State considers unconstitutional, this may vault these laws to the legal forefront. This tact utilizes the Tenth Amendment as its basis.

Without question, this tactic will face a tough road to hoe. This type of end-around has been tried previously and rejected each time. The Supremacy Clause and separation of powers have always sided with the Federal Government as the supreme law of the land. Along with legal precedent on their side, the Feds have a stacked deck on their side.

Now, I don’t intend to portray any legal expertise on this issue. However, I can make a couple of general observations. Certainly, the state senates across the country are well aware that what they are attempting has always failed in the past. So what are they up to this time? Basically, I see them as simply attempting to get a quorum of states together on the Tenth Amendment issue to force the Supreme Court to move it to the forefront. So, we’ll see if this serves as the springboard to getting the majority of the states on-board or not.

The Arizona Senate just passed SB1433 on its second attempt. You can read it here. Below is a fact sheet.









Fiftieth Legislature, First Regular Session




federal legislation; state nullification




            Establishes the Joint Legislative Committee on Nullification of Federal Law (committee). 




            The Tenth Amendment to the United States (U.S.) Constitution states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


            There is no anticipated fiscal impact to the state General Fund associated with this legislation.




1.      Asserts that this state and its citizens are not required to recognize or live under any federal legislation that has been nullified by simple majority vote of the Legislature on the grounds of constitutionality.


2.      Requires that the committee ensure that the Legislature adopts and enacts all measures necessary to prevent the enforcement of any nullified federal legislation pursuant to this section.


3.      Requires the Legislature to vote on whether to nullify the action recommended by the committee for nullification within sixty days after the recommendation.


4.      States that until the vote, the recommendation is of no effect.


5.      Requires the documentation of the Legislature’s vote to be documented in the journals of the respective houses.


6.      Requires that the committee ensure that the U.S. Supreme Court has jurisdiction of any cause of action regarding nullification of any federal legislation between Arizona and the federal government.


7.      Requires the committee to recommend, propose and call for a simple majority vote to nullify a specific federal legislation that is outside the powers delegated in the U.S. Constitution by the people to the federal government.


8.      Requires the committee to make a recommendation within thirty days after receiving the federal legislation for consideration and process.


9.      Allows the committee to recommend for nullification, existing federal legislation enacted before the effective date of this section.


10.  Allows the committee to review existing federal legislation to determine their constitutionality.


11.  Establishes the committee, which consists of:

a)      the President of the Senate or the President’s designee,

b)      six appointed members of the Senate who are appointed, but no more than four members of the same political party, and

c)      six appointed members of the House of Representatives, but no more than four members of the same political party.


12.  Requires members to serve two-year terms beginning and ending on the convening of the regular session of the legislature each odd-numbered year.


13.  Requires the committee to meet on the call of either co chairperson.


14.  States that a majority of the committee members constitutes a quorum for the transaction of business.


15.  Requires the Secretary of State to transmit copies of this act requesting that this act be officially entered into the congressional record to:

a)      the President of the United States;

b)      the President of the United State Senate;

c)      the Speaker of the United States House of Representatives; and

d)     each member of Congress from the State of Arizona.


16.  Includes Legislative findings.


17.  Becomes effective on the general effective date.



Prepared by Senate Research

February 16, 2011




3 thoughts on “Will State nullification laws be the ticket to rein in an unconstitutional Federal Government?”

  1. My best guess is that the USSC would find this law unconstitutional, and reassert its self-granted role as the final arbiter of the Constitution. I would expect them to hold that states should seek redress through the courts, not through unilateral action.

    But compare this law to the Obama administration’s decision to stop defending DOMA because the admin thinks it’s unconstitutional. Even though I agree (on federalist grounds, among other things), it’s the wrong way to go about it. I believe that process and procedure are as important as the substance of the law itself. We need confidence not just that laws are fair, but that the system works fairly and reliably. Dwindling confidence in legal processe has a net destabilizing effect, which is bad for freedom.

    Regarding the AZ law, I haven’t reached a decision as to whether I like it or not. As a practical matter it looks like it would change who the legal challenger would be – instead of the state challenging fed action in court, the feds would challenge the state in court.

  2. It’s as if they are simply throwing up everything they can just to see what sticks. At least from the aspect of what works. I support the Tenth Amendment movement personally as a means to check what you stated in that the SCOTUS has determined that it has the ultimate say in Constitutional matters.

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