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Posted Sep 10, 2012, 2:10 pm
A plurality of "yes" votes for the Arizona Federal Action Rejection Amendment (FARA) would amend the Arizona Constitution to allow the state to reject, by referendum or approval by the Legislature, any federal action deemed as violating the U.S. Constitution.
That's fancy language for what amounted to a gambit to have Arizona partially secede from the union. But as Rick's Café proprietor Humphrey Bogart intoned in Casablanca, "It seems that destiny has taken a hand."
Petitions for the so-called "Checks and Balances" proposal came up short, producing only 183,000 valid signatures – well below the 259,000 required, according to the Secretary of State's official count. The ironic role reversal – state rejection of an initiative advocating federal rejection – means FARA will not appear on the ballot this November. Roll credits.
So what was the hullabaloo about?
In sum, proponents said FARA would have provided Arizona with a mechanism to "push back" against what they claimed was "federal overreach." Opponents said the initiative violated Article VI of the U.S. Constitution – commonly referred to as the Supremacy Clause, which explicitly prohibits states from nullifying federal actions.
The key word here is nullification – an on-again, off-again movement fueled by states' rights advocates who believe political power resides best in state governments rather than the federal government. It's a long-running feud that dates back to the nation's founding.
Historically, nullification laws have been invoked in opposition to wars and, as proponents love to boast, odious fugitive-slave laws. Today, FARA advocates cite the federal Affordable Care Act upheld in July 2012 by the Supreme Court as the "flagship" example of why the ballot measure is needed.
Jack Biltis, principal sponsor of the initiative, argued that FARA would simply give Arizona a legal mechanism to evaluate federal laws and to reject those deemed as violating the Constitution. "It doesn't give a blanket veto power to any one branch but basically it just reaffirms what the state already has the power to do," Biltis told The Arizona Republic.
Opponents argued that nullification laws have no constitutional basis and have been repeatedly struck down by the U.S. Supreme Court. "States don't have the power to pick and choose what legislation they pay attention to," argued Paul Bender, a constitutional law professor at Arizona State University. He told the Arizona Capitol Times that FARA "would absolutely be found unconstitutional in court."
Further, Bender said that even apart from wasting taxpayer money on litigation, Arizona stood "to lose billions of dollars in federal funding" since it could be withheld for noncompliance with federal mandates
It's anybody's guess how FARA might have fared with voters given the vagaries of the disaster-policy flick genre. But expect a sequel anyway. In fact, it's a good bet that a casting call for the next referendum cycle in 2014 is already under way.
Morrison Institute for Public Policy is a leader in examining critical Arizona and regional issues, and is a catalyst for public dialogue. An Arizona State University resource, Morrison Institute uses nonpartisan research and communication outreach to help improve the state's quality of life.
Ed Perkins is a policy analyst at the Morrison Institute for Public Policy, an ASU think tank.