PHOENIX — It won’t eliminate ObamaCare in Arizona.
And it’s unlikely to keep the Environmental Protection Agency from imposing new air quality rules on power plants here.
But proponents of Proposition 122 insist that the proposed state constitutional amendment would give Arizona the power to rein in future federal government overreach. And it would do it through the power of the purse.
In essence, the measure on the Nov. 4 ballot would permit lawmakers or voters to decide that some federal program is inconsistent with the U.S. Constitution. Such a decision then would block the state from using its personnel and resources to implement the federal program.
It’s a far cry from the original proposal by Scottsdale millionaire Jack Biltis who two years ago had sought to put a provision in the Arizona Constitution effectively allowing the voters “to reject any federal action that they determine violates the United States Constitution.” That petition drive fell short.
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But that wasn’t the only problem. Biltis conceded that language, which would have said that states can nullify federal laws and regulations, likely was unenforceable.
“This is more meaningful,” he said. “It has teeth in it.”
And it’s also likely legal.
In 1997 the U.S. Supreme Court sided with Graham County Sheriff Richard Mack who fought a federal mandate that his agency conduct, at its own expense, background checks on those buying weapons. Justice Antonin Scalia, writing for the majority, said the federal government cannot commandeer state resources.
The measure has drawn only limited organized — and so far unfunded — opposition, largely over environmental concerns.
Carolyn Campbell, executive director of the Tucson-based Coalition for Sonoran Desert Protection, said she fears that this would undermine things like the Endangered Species Act. But she said there’s a larger issue here.
“It’s basically seceding from the union by what they’re doing here not to enforce any federal laws,” Campbell said.
“It just doesn’t make any sense,” she continued. “And I certainly don’t think that the people of Arizona, the voters, if they were aware of it, would vote for it.”
That leaves the central question of whether Proposition 122 actually would block enforcement of any federal laws in Arizona.
“It’s hard to say in the abstract,” said Clint Bolick of the Goldwater Institute who helped write the measure.
He used the example of the EPA deciding that certain streams in Arizona were considered “navigable.”
That designation triggers a hose of federal environmental regulations about permits that are required to discharge pollutants into those streams. Bolick said that can restrict how the owners of adjacent properties can use their land.
“If we invoke Proposition 122, it will be the federal government’s problem to enforce that,” he said. “They could not invoke local law enforcement to enforce the federal law.”
But it’s not even that simple.
Bolick said one way the federal government gets state and local agencies to do its bidding is not by compulsion but instead with the “lure of federal dollars.” Put simply, if you want certain funding from Washington, you’ll live by its rules.
Proposition 122 would not alter that. What it would do, he said, is empower the Legislature or the voters to decide whether it’s “financially worthwhile to implement some new federal mandate.”
But Bolick said it has to be ahead of some program, and not behind it.
He said had Proposition 122 been in effect before Congress approved the Affordable Care Act, lawmakers could have referred the question of whether Arizona should opt in to the expanded Medicaid program to the voters. And if the voters had decided not to go along, that would have precluded what subsequently happened when the Legislature, at the behest of Gov. Jan Brewer, decided otherwise.
At this point, financially, it’s pretty much a one-sided battle.
The pro-122 committee reported earlier this month it had collected $275,540, though more than $257,000 came from Biltis who said he has mortgaged his house to finance the campaign. At this point there is no group that has formed to fight the ballot measure, though Campbell said she is hoping some campaign comes together.
The fight is taking on political overtones.
Various current and former GOP lawmakers have come out in favor of the ballot measure. And the Arizona Republican Party has formed a separate campaign committee to use its own funds, above and beyond what Biltis is spending, on the message of fighting unconstitutional federal actions.
