Senator seeks distance from federal laws

State Sen. Brian Nieves doesn’t think lawyers or the courts have the only right to determine whether a federal law is constitutional.

He wants Missouri voters in November to change the state Constitution’s Bill of Rights, so that it would prohibit “the Missouri legislative, executive, and judicial branches of government from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.”

During this week’s hearing of the Senate’s General Laws Committee, Nieves, R-Washington, pointed to the U.S. Constitution’s 10th Amendment, which says Congress’ powers and authority are limited to those listed in the Constitution’s Article I, Section 8, while all other powers “are reserved to the States respectively, or to the people.”

His proposed amendment, identified as Senate Joint Resolution (SJR) 38, would block Missouri government from supporting or enforcing any federal laws or actions that:

• Restrict the right to bear arms.

• Legalize or fund abortions, or the destruction of any embryo from the zygote stage.

• Require the sale or trade of carbon credits or impose a tax on the release of carbon emissions.

• Involve certain health care issues.

• Mandate the recognition of same sex marriage or civil unions.

• Increase the punishment for a crime based on a perpetrator’s thoughts or designate a crime as a hate crime.

• Interpret the ‘establishment clause’ as creating a wall of separation between church and state. The clause is from the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

• Restrict the right of parents or guardians to home school, enroll their children in a private or parochial school, or restrict school curriculum.

Nieves’ proposed amendment to the state Constitution requires the state, including judges, to interpret the U.S. Constitution “based on its language and the (original) intent” of its signers. And the U.S. Constitution’s amendments are to “be interpreted by their language and the intent of the congressional sponsor and co-sponsors of the amendment.”

Patty Skain, the Missouri Right to Life group’s executive director, supported the proposal: “Millions of Missourians object to paying for abortion with their insurance premiums or their taxes, and they should not be required (or) forced to participate in that.

“In addition, we believe that Obamacare is financially unsustainable, (so) we believe that Missourians need to have the right not to participate in a health care program such as this.”

But Pamela Sumners, executive director of the group NARAL Pro-Choice Missouri — who described herself as “a constitutional and Civil Rights lawyer” — countered: “The federal government is not the enemy of the states — a balance was struck a very long time ago, between state autonomy and the authority and responsibility of the federal government. Federal law is, in fact, supreme — the state of Missouri cannot secede from that.

“There are any number of things that I, personally, as a citizen, would rather my taxes not pay for (but) you must pay your just taxes.

“You must abide by the law, and that does mean, in our case, the federal law.”

Another lawyer, Michael Santschi of Arnold, told the committee he generally supports Nieves’ proposal and would vote for it if the amendment gets to the Nov. 4 ballot.

But, he added: “Understand, the U.S. Constitution has the Supremacy Clause, and it explicitly states it’s the law of the land (and) state laws have to submit to the federal law.

“If the United States Supreme Court — Heaven help us — ruled that man and man can marry, it will overturn Missouri state constitutional law. End of sentence.”

During Tuesday’s committee hearing, Nieves also presented a proposed law that would prohibit the state from enforcing two sections of the federal National Defense Authorization Act of 2012.

Nieves said Section 1021 “purports to assert that the president of the United States — no matter who that President may be — has the authority to not only arrest suspected terrorists, but also determine whether or not a trial, including what type of trial, will be held for those arrested.”

And Section 1022 “requires detention without trial by the military for a certain class of terrorists, and authorizes — although not requiring — the same for U.S. citizens.”

If lawmakers pass and Gov. Jay Nixon signs the bill, Nieves said, “The state of Missouri is going to hold true to our bill of rights, and that Missouri citizens will always have due process, regardless of subject matter.”

No one testified for, or against, the proposed law.

As for those who argued that the “Supremacy Clause” in the U.S. Constitution’s Article VI would block implementation of his proposed law or constitutional amendment, Nieves told the committee: “It doesn’t just say, ‘The Constitution of the United States provides that laws of the United States are the supreme law of the land’ — it talks about the fact that, provided they are made in pursuance of the powers delegated to the federal government in that same Constitution.

“So, when the federal government acts outside of the confines of Article I, Section 8 of the U.S. Constitution, its actions are automatically null and void” — and states don’t have to wait for a federal court ruling to declare a federal law unconstitutional.”

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