Conservative Republicans hate losing in court so much they’re pushing an old idea that has long been discounted as unconstitutional: If a state doesn’t like a federal law, its elected representatives should be able to legally declare their state exempt of it.

That would take care of that pesky “federal overreach” they’re always complaining about. If Wyoming lawmakers don’t like the Affordable Care Act (ACA) — and most of them don’t — they could make it disappear within our borders. The same would hold true in all 50 states for same-sex marriage, environmental regulations and a host of other laws they deem objectionable.

That’s the concept Sen. Mike Enzi (R-Wyoming) is endorsing by introducing a constitutional amendment to give states such unprecedented power. If it sounds familiar, that’s because Southern states used the same logic to try and preserve slavery and segregation.

Enzi and other proponents say they just want to bring back checks and balances to the federal system of government, but it would do no such thing. The amendment would mean anything the federal judicial, legislative and executive branches do could simply be declared null and void. Thankfully, nullification is illegal because even extreme conservatives have to abide by the U.S. Constitution, a document they claim to revere — except when things don’t go their way.

The Constitution’s authors made it clear they absolutely wanted federal laws to prevail in any conflict with state laws. The Supremacy Clause spells it out in language that has guided our legal system since the Constitution was ratified: Federal statutes and treaties are “the supreme law of the land.” Period.

There’s no way any reasonable person could misinterpret that declaration, yet it is routinely viewed incorrectly by extremists who point to the 10th Amendment’s declaration that powers not specifically enumerated by the federal government belong to the states.

Of course, there’s no way our founders could have known centuries into the future every single instance in which it would be necessary for Congress to enact laws that protect the well-being of its citizens or are necessary for the fair and equal treatment of individuals. The Constitution doesn’t specify health care is under the specific purview of the federal government. But that doesn’t mean all healthcare laws and regulations must be written by states and the feds must ignore the issue.

Yet that’s what the Tea Party and some Republicans have maintained in the needlessly lengthy fight over the ACA, or “Obamacare.” Enzi, an ardent opponent of federal health care reform, fought every suggested compromise and voted against it because it’s an issue he thinks is better left up to individual states.

If “strict constructionists” like Enzi had their way, states’ rights would always prevail on issues like immigration reform, civil rights, same-sex marriage and women’s reproductive rights. There would be no way to apply such laws nationally in a fair and uniform manner, because there would be no federal laws restricting what states can do or identifying what they must do.

Many conservatives have used states’ rights as an excuse to try to abolish the federal income tax, eliminate or privatize Social Security, take away money millions of seniors rely on to survive, and gut environmental protection laws so private enterprise could do whatever it wants.

Enzi’s proposed amendment would require passage by the U.S. House and Senate, and then ratification by 38 states. If it were to win that level of support by Congress and state lawmakers, it would only require substantially similar resolutions to be passed in 34 states to overturn a specific federal law or regulation.

That’s a high barrier to passage, but not an insurmountable one for supporters to reach. Amendments similar to Enzi’s have been introduced in 34 state legislatures, and already passed in 14 of them. That leaves the GOP-controlled Congress and 20 states to convince.

As it has proven over the years, the American Legislative Exchange Council (ALEC) has built a huge coalition of state lawmakers that it gets to promote such right-wing bills as stand-your-ground gun laws and voter ID legislation — the latter aimed at suppressing the votes of minorities more likely to vote for Democratic candidates.

With an active network to speedily push any nutty ideas it comes up with through statehouses, ALEC would have the power and the means to quash any federal laws or regulations it opposes, even if they are constitutional. With Enzi’s amendment in place, the courts would be powerless to stop what could be an endless assault on civil liberties and other rights.

Now, is this going to pass? No, because the U.S. Supreme Court has consistently ruled post-Civil War that the Supremacy Clause means exactly what it says, and state laws can’t trump federal legislation.

But it’s also an issue that plays extremely well with the conservative base of the Republican Party, which despises the federal government. Nothing quite riles up a crowd of right-wingers like throwing them red meat by calling for states’ rights to be recognized and telling the feds to go to hell.

Enzi is an intelligent man — you don’t become a four-term U.S. senator without the ability to understand how our form of government works. He’s co-sponsored this amendment with GOP colleagues in past sessions, but so far is the only senator who has signed on to this one.

His constituents should rightfully chastise him for effectively telling the rest of the nation that Wyoming is so influenced by a minority of Tea Partiers that we think this amendment is both realistic and necessary. But that’s only part of the problem.

The real question that needs to be asked is why is he bothering to waste his time like this, when he should be helping his constituents or working on legislation the country actually needs? He wasn’t elected to tilt at windmills or make meaningless political statements.

Sponsoring this amendment isn’t going to help him politically anyway, because he’s entrenched in the Senate and there’s no danger of him losing his committee chairmanship or his seat.

It appears Enzi is carrying water for his conservative friends, who likely realize they could look ridiculous by touting an anti-federal scheme that has no chance of passing this or any other year. Unless it becomes a popular rallying cry for the far right in the 2016 elections and convinces voters to go to the polls, it’s a waste of everyone’s time.

Enzi says one of the reasons he’s sponsoring the amendment again is to increase accountability in government. He should make himself accountable for not working on issues that actually matter, such as immigration reform and improving our tenuous relationship with Middle East nations and some of our allies. That should keep him busy for awhile.

— Columns are the signed perspective of the author, and do not necessarily reflect the views of WyoFile’s staff, board of directors or its supporters. WyoFile welcomes guest columns and op-ed pieces from all points of view. If you’d like to write a guest column for WyoFile, please contact WyoFile editor-in-chief Dustin Bleizeffer at dustin@wyofile.com.

Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. Why is it that cities can declare themselves Sanctuary Cities and ignore federal immigration laws?

    James Morrison

  2. You’ve knocked another one out of the park, Kerry. Thank you for a thoughtful, intelligent essay.

    Dave Throgmorton