Defend State Sovereignty through Constitutional Defense Councils Despite polls showing widespread opposition to the Obama Health Care Program, as well as concerns about its constitutionality, states like Arizona and Missouri were unable to defend their sovereignty from the federal government through their chief law enforcement officers— their attorney generals. Arizona’s attorney general also previously refused to challenge an effort by the federal judiciary to micromanage Arizona’s school policies in the state’s ultimately successful challenge to such federal overreach in Horne v. Flores.1 This is nothing new. During the 1990s, states responded to such recalcitrance by their attorneys general by authorizing the creation of “Constitutional Defense Councils,” which would have the independent power to retain legal counsel to defend state sovereignty. In early 1994, for example, Governor Fife Symington asked the legislature to approve a Constitutional Defense Council “in response to passage of the Clean Air Act, the Endangered Species Act, and the Brady bill, all of which required state action but didn’t provide funding.”2 A New Hampshire bill requesting a Constitutional Defense Council went so far as to include an extensive list of specific regulations that the council was created to defend against, and environmental acts were the largest category of targeted acts.3 In all, during the 1990s, six states considered or enacted laws that created Constitutional Defense Councils. Specifically, Pennsylvania,4 New Hampshire, Illinois,5 and Oregon6 introduced bills in their legislatures; Arizona, Idaho, and Utah enacted such legislation. The purpose of these councils was to guarantee institutionally that a lawyer representing the state would protect the prerogatives of the state from federal overreach. Nevertheless, both the Arizona and Utah Constitutional Defense Councils have never become actively engaged in defending state sovereignty from federal overreach. Utah’s Constitutional Defense Council was considered defunct by 2008.7 Idaho, by contrast, played a role in fighting the Real ID Act and federal gun laws,8 and it may become involved in the fight against national health care.9 The inaction by Arizona’s Constitutional Defense Council can be traced to a constitutional defect resulting after Arizona’s Attorney General was removed from the Constitutional Defense Council. 10 Removing the attorney general from the council removed the executive influence on the council, which raised separation-of-powers concerns. In Woods v. Block,11 the Arizona Supreme Court ruled that the Constitutional Defense Council could not represent the state as a whole, saying that the Constitutional Defense Council “violates the state constitution’s separation-of-powers clause because it is a legislatively created and controlled body performing executive functions.” 12 The Constitutional Defense Council Act,13 however, still exists and was amended as recently as 2000. Utah and Arizona have a similarly strict approach to the separation of powers between the departments of state government, which may explain inaction from Utah’s Constitutional Defense Council.14 Idaho is less strict in this regard.15 Indeed, the reasoning of Woods v. Block may threaten Constitutional Defense Council laws in Utah, Idaho, and elsewhere, insofar as most state judiciaries generally enforce structural limitations on state government, including separation-of-powers doctrine, under their state constitutions more vigorously than does the federal judiciary under the U.S. Constitution.16 The surest manner in which to avoid constitutional objections to the Constitutional Defense Council raised in Woods v. Block is to amend the state constitution to allow its existence as originally conceived. Notwithstanding perceived conflicts with the doctrine of separation of powers, it is not uncommon for the powers of the various departments of state government to be blended in this way, as exemplified by Arizona’s line-item veto power, which gives quasi- legislative power to the governor to effectively redraft legislation. In the alternative to a constitutional amendment, navigating the separation of powers would involve ensuring that Constitutional Defense Councils are established by statute to include a majority of executive branch appointees. Concerns about the executive branch having political reasons to refuse to approve litigation by the Constitutional Defense Council should be dealt with by making it mandatory for the council to defend state sovereignty in specific ways, and to authorize taxpayer lawsuits to compel the council to perform its constitutionally mandated obligations through the remedy of mandamus. For example, the legislation creating the Constitutional Defense Council should specify that the council must defend state sovereignty from federal incursion where necessary to protect the state’s exclusive authority over intrastate crimes, intrastate health care regulation, or intrastate firearms regulation. And if politics get in the way of the Constitutional Defense Council’s mission, taxpayers should have the legal right to go to court and compel the council to defend state sovereignty by retaining outside counsel who will. 1 Horne v. Flores, 129 S.Ct 2579 (2009). 2 Associated Press, Search Is on for Test Case of States’ Rights, Deseret News A3 (May 20, 1994). 3 New Hampshire H.B. 0619, ch. 17-P, 8 (Apr. 1995), available at http://www.gencourt.state.nh.us/legislation/1995/HB0619.html (last visited Dec. 14, 2010). 4 Pennsylvania H.B. 3058 (Oct. 4, 1994), available at http://www.legis.state.pa.us/cfdocs/legis/PN/public/BtCheck.cfm?txtType=HTM&sessYr=1993&sessInd=0&billBo dy=H&billTyp=B&billNbr=3058&pn=4284l (last visited Sept. 21, 2010). 5 Illinois SB 0142 (Jan. 11, 1995), available at http://libsysdigi.library.uiuc.edu/ilharvest/ILLegislative/v01995i00002/finallegislativev01995i00002_ocr.txt (last visited Dec. 14, 2010). 6 Oregon SB 1061, 68th Sess. (1995). 7 Patty Henetz, Utah Guv Stakes a Claim on Roads, Salt Lake Tribune (Jan. 28, 2008). 8 Dustin Hurst, Harwood Wants a Gun Fight with Feds, Idaho Reporter (Feb. 18, 2010), available at http://www.idahoreporter.com/2010/harwood-wants-a-gun-fight-with-feds/ (last visited Dec. 14, 2010). 9 Marty Trillhaase, If Anybody Can Out-Utah Utah, Idaho Can, Magicvalley.com (Twin Falls, Idaho) (April 4, 2010), available at http://www.magicvalley.com/news/opinion/editorial/article_b00ec6d0-06fe-5b55-91e9- 718f8c19aa0e.html (last visited Dec. 14, 2010). 10 Panel Votes to Bar Woods from Fight vs. U.S, Arizona Daily Star (Mar. 8, 1995). 11 942 P.2d 428 (Ariz. 1997). 12 Associated Press, States’ Rights Council Ruled Unconstitutional, Kingman Daily Miner (July 16, 1997). 13 A.R.S. § 41-401. 14 Compare Ariz. Const. art. 3, with Utah Const. art. 5, § 1. 15 See Idaho Const. art. 4, § 20. 16 Goldwater Institute, Some Stars Are Brighter Than Others, http://goldwaterinstitute.org/brightstars/ (setting “structural limitations” weighting to maximum and all other weighting to minimum).
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