Could Idaho voters pass a 2010 initiative to nullify federal health insurance laws within the state?

Plain-English summary

The petition came from one of the wave of "nullification" measures that flowed through state legislatures and ballot offices in late 2009 and early 2010 in response to federal health care reform. The proposed Idaho Health Insurer Protection Act would have declared "law, code, mandate, or regulation" of the federal government void in Idaho if it took certain enumerated actions affecting health insurers.

Attorney General Lawrence Wasden's certificate, written under the time-limited Idaho Code § 34-1809 review framework, concluded the initiative was "likely unconstitutional" under the Supremacy Clause. State law cannot declare federal law void within state borders. The power to invalidate federal statutes for unconstitutionality lies with federal courts under Article III, not with state legislatures or the people acting by initiative. The AG also flagged that the initiative raised "numerous ancillary legal issues, most of which would likely be fatal," but the time-limited statutory review window did not allow detailed analysis of each.

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.

Background and statutory framework

Idaho's certificate-of-review process under Idaho Code § 34-1809 gives the Attorney General a narrow statutory window to flag legality concerns with proposed initiatives. The AG's recommendations are "advisory only," and petitioners are free to "accept or reject them in whole or in part." The review covers issues that may affect the legality of the initiative itself, not policy merit.

The Supremacy Clause analysis the AG applied was straightforward: "State laws that conflict with federal law are without effect." Altria Group, Inc. v. Good, 555 U.S. 70 (2008). "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, 556 U.S. 729 (2009). State courts and state officers are bound by federal law; they cannot declare it void.

This certificate is one of several from the same time period that addressed federal-nullification measures (compare the Greenhouse Gas and IRS-prosecution petitions reviewed on the same day). The AG's analysis was consistent across all of them: a state initiative cannot strip federal law of its force inside the state.

Common questions

Q: Did this initiative reach the ballot?
A: The certificate of review is the first procedural step. Many initiatives that draw negative legality reviews do not advance to signature collection. The reader should consult Idaho Secretary of State election records to confirm whether this specific petition appeared on a subsequent ballot.

Q: Is the AG saying federal health care reform is constitutional?
A: No. The AG's review under § 34-1809 was about the legality of the proposed initiative, not the merits of the federal statute it sought to nullify. The constitutionality of the underlying federal law was a separate question being litigated in federal courts at the same time.

Q: Could a state legislature have passed the same content as a statute?
A: The AG's analysis would apply to either form. The Supremacy Clause concern is about the substance (state purports to void federal law), not the procedural vehicle (statute or initiative). A state statute making the same declaration would face the same defect.

Q: What is the role of the Attorney General in initiative review?
A: Under Idaho Code § 34-1809, the AG reviews proposed initiatives for "form, style, and matters of substantive import" and provides advisory comments to the petitioners. The AG's office also prepares the short and long ballot titles. The AG does not approve or reject the initiative itself; the Secretary of State handles the procedural petition process.

Citations and references

Statutes:
- Idaho Code § 34-1809 (certificate of review process)
- U.S. Const. art. VI, § 2 (Supremacy Clause)

Cases:
- Altria Group, Inc. v. Good, 555 U.S. 70 (2008), state law conflicting with federal law is "without effect"
- Haywood v. Drown, 556 U.S. 729 (2009), federal law is the law of the several states
- Hayfield N. R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622 (1984), preemption invalidates state law contradicting Congress

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021710a.pdf

Original opinion text

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

February 17, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re:

Certificate of Review
Proposed Initiative Related to the Idaho Health Insurer Protection Act

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." 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. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

MATTERS OF SUBSTANTIVE IMPORT

State Law Cannot Supersede or Nullify Federal Law

The proposed initiative is likely unconstitutional. The initiative seeks to nullify any "law, code, mandate, or regulation" of the federal government if it takes any of a series of enumerated actions. This initiative seeks to elevate state law above that of the federal law. As outlined below, this elevation likely violates the Supremacy Clause.

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 laws that conflict with federal law are "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, 123 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 bill would clearly and plainly (and in fact has the stated purpose) of contradicting and interfering with acts of Congress.

The rationale of the proposed initiative seems to be that federal statutes that exceed the grant of limited powers in the Constitution can be nullified or declared void by the state. Even assuming this underlying premise, the fatal flaw in this bill is that it usurps the constitutional authority to declare federal law unconstitutional. It is simply not within the state'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.

CONCLUSION

For the reasons set forth above, it is likely that a court reviewing this initiative, if enacted, would find its content to be unconstitutional. Additionally, this initiative raises numerous ancillary legal issues, most of which would likely be fatal, too numerous to mention given the strict timeframe in which this analysis must occur.

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 the 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:
BRIAN P. KANE
Deputy Attorney General