Could an Idaho ballot initiative declare federal statutes unenforceable in Idaho if they don't cite a specific enumerated power of Congress?

Plain-English summary

A petitioner filed a 2010 Idaho ballot initiative declaring as nullities all federal statutes that did not specifically cite the enumerated grant of power in the U.S. Constitution authorizing them, or that were "inconsistent with the framer's intent" regarding such enumerated power. The Idaho Secretary of State would have had to maintain a registry of nullified federal statutes. The Idaho Attorney General would have certified statutes as nullified or not nullified. The Idaho Legislature could declare federal laws nullities. And, perhaps most striking, individual county sheriffs would have been delegated unilateral authority to deem federal laws nullities. The initiative would have prohibited sheriffs from enforcing federal laws deemed nullities, criminalized federal officers' enforcement of nullified federal laws, and granted unspecified civil remedies to any person who had a nullified federal law enforced or attempted to be enforced against them.

The Attorney General's Certificate of Review concluded the initiative was clearly unconstitutional. The Supremacy Clause (Article VI of the U.S. Constitution) makes federal law "the supreme law of the land" and binds state judges to apply it. State law that conflicts with federal law is "without effect" (Altria Group, Inc. v. Good (2008)). Federal law is "as much the law of the several States as are the laws passed by their legislatures" (Haywood v. Drown (2009)). The initiative's stated purpose, which was to contradict and interfere with acts of Congress, ran headlong into Hayfield Northern Railroad Co. and the broader preemption doctrine.

Beyond the Supremacy Clause problem, the AG identified what the office called the "fatal flaw": the initiative usurped the Article III judicial authority to declare federal laws unconstitutional. The Constitution vests that authority exclusively in the U.S. Supreme Court and the federal courts created by Congress. The Idaho Attorney General, the Idaho Legislature, and Idaho county sheriffs simply do not have it. Both state and federal courts, the AG noted, are constitutionally bound to declare void any state action that contradicts or interferes with acts of Congress.

The AG concluded that no alterations or revisions could render the initiative constitutional. The defect was structural, not a matter of wording.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is "nullification" in this context?

A doctrine asserting that an individual state has the authority to declare federal law unconstitutional and refuse to enforce it within state borders. The doctrine traces back to the Virginia and Kentucky Resolutions of 1798 and the South Carolina nullification crisis of 1832, and has been thoroughly rejected by the Supreme Court ever since. The Civil War-era Constitution and the Supremacy Clause as interpreted across two centuries leave no room for unilateral state nullification.

Why does the AG say only federal courts can declare federal laws unconstitutional?

Article III of the U.S. Constitution vests the "judicial power of the United States" in the Supreme Court and "such inferior Courts as the Congress may from time to time ordain and establish." Marbury v. Madison (1803) established that the federal judiciary's role includes deciding the constitutionality of federal statutes. State officials and state legislatures are not in the Article III system; they have no authority to make binding pronouncements about whether federal law is constitutional.

What about the Tenth Amendment argument?

The Tenth Amendment reserves powers "not delegated to the United States by the Constitution" to the states or to the people. The argument behind nullification initiatives is that if Congress acts beyond its enumerated powers, the resulting statute is a nullity that the states can ignore. The Supreme Court's answer is twofold: first, Congress's enumerated powers (especially the commerce power) are broader than nullification advocates assert; second, even when Congress oversteps, the proper remedy is federal-court invalidation, not unilateral state action.

Why did the AG say no revision could fix it?

Because the initiative's core mechanism (state and county officials deciding for themselves whether federal law is constitutional) cannot be reconciled with the Constitution. You can rewrite the words, but as long as the proposal asks state actors to declare federal law invalid, it conflicts with both the Supremacy Clause and Article III.

Did this initiative reach the ballot?

The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures, redrafted the proposal, or abandoned it would need to be confirmed against Idaho election records.

Background and statutory framework

The Certificate of Review process under Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review before signature gathering. The review covers form, style, and substantive legal problems including any constitutional defects. Recommendations are advisory; the AG takes no position on policy.

The substantive analysis combines two doctrines. Preemption under the Supremacy Clause invalidates state law that contradicts or interferes with federal law (Hayfield Northern Railroad Co.). Article III judicial review locates the authority to declare federal law unconstitutional in the federal courts (Marbury v. Madison and its descendants). Together they bar a state from declaring federal law a nullity through any state mechanism.

This was one of three nullification-style initiatives the same petitioner filed for the 2010 cycle. The companion petitions on arrest authority (limiting federal officers' authority absent sheriff approval) and the Idaho Firearms Freedom Act (carving in-state firearms manufacture out of federal regulation) raised related Supremacy Clause concerns. The AG issued parallel Certificates of Review on each.

Citations

U.S. Constitution: art. III; art. VI.

Idaho Code: § 34-1809.

Cases: Altria Group, Inc. v. Good, 555 U.S. 70 (2008); Haywood v. Drown, 556 U.S. 729 (2009); Hayfield Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622 (1984).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021010c.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 10, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re: Certificate of Review
Proposed Initiative Related to Enforcement of Federal Laws

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." Due to the number of initiatives that were submitted for review and the available resources for performing the reviews, we did not communicate directly with the petitioner as part of the review process. The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

A. Introduction

This initiative declares that it receives its authority from the rules of the House of Representatives and the Tenth Amendment, and seeks to declare as nullities and unenforceable in Idaho all federal statutes that do not specifically state the enumerated grant of power to Congress in the United States Constitution authorizing passage of said statute, or which are inconsistent with the framer's intent regarding such enumerated power. It requires the Secretary Of State to keep a registry of nullified federal statutes, and the Attorney General to certify a statute as nullified or not nullified. The initiative would also grant that the Idaho Legislature can certify federal laws as nullities, and delegates to county sheriffs the authority to unilaterally deem federal laws nullities. The initiative then prohibits sheriffs from enforcing federal laws deemed nullities, criminalizes enforcement of nullified federal laws by federal employees, and grants unspecified civil remedies to any person who has had a nullified federal law enforced or attempted to be enforced against them.

B. The Initiative is Clearly Unconstitutional

The Supremacy Clause of the United States Constitution provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." U.S. Const., art. VI, § 2 (emphasis added). State law that conflicts with federal law is "without effect." Altria Group, Inc., v. Good, - U.S. -, 129 S. Ct. 538, 543, 172 L.Ed.2d 398 (2008). Under the Preemption clause, it is "clear that federal law is as much the law of the several States as are the laws passed by their legislatures." Haywood v. Drown, - U.S. -, 129 S. Ct. 2108, 2114, 173 L.Ed.2d 920 (2009). "Preemption doctrine stems from the Supremacy Clause of the United States Constitution and invalidates any state law that contradicts or interferes with any Act of Congress." Hayfield Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622, 627, 104 S. Ct. 2610, 81 L.Ed.2d 527 (1984). This initiative clearly and plainly (and in fact has the stated purpose) of contradicting and interfering with acts of Congress.

The rationale of the initiative seems to be that federal statutes that exceed the grant of limited powers in the Constitution or that do not expressly state what enumerated power justified that act are unconstitutional. Even assuming this underlying premise, the fatal flaw in this initiative is that it usurps the Constitutional authority to declare federal law unconstitutional. It is simply not within the Idaho Attorney General's or the Idaho Legislature's authority to declare federal laws null and void; that authority lies exclusively with the Supreme Court of the United States and the federal courts created by Congress. U.S. Const., art. III. Both state and federal courts are constitutionally bound to declare void any state action that contradicts or interferes with the acts of Congress.

C. Recommended Revisions or Alterations

There are no alterations or revisions to this initiative that would render it constitutional.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alanna Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
KENNETH K. JORGENSEN
Deputy Attorney General