Could a 2010 Idaho ballot initiative withhold federal income tax revenue from the federal government?

Plain-English summary

The proposed State Sovereignty Act would have purported to allow Idaho to withhold a portion of federal income tax revenue from the federal government. Attorney General Lawrence Wasden's certificate concluded the measure would be preempted.

The legal analysis is short and direct. The Sixteenth Amendment gives Congress the power to "levy income taxes, without any requirement that the states receive a portion thereof." A state cannot block or withhold federal tax collection without federal authorization, and federal law contains no such authorization. The Supremacy Clause invalidates state laws that conflict with federal authority, and the proposed initiative would have done exactly that. The certificate concludes: "Based upon the above analysis, this initiative if adopted, and subsequently challenged, would likely be struck down as an unconstitutional enactment."

This certificate is one of a cluster of "nullification" measures the Idaho AG reviewed in February 2010 (compare the IRS-prosecution, GHG, Health Insurer Protection Act, and Health Care Freedom Act certificates). The legal analysis is consistent across the cluster: states cannot nullify federal law, regardless of the substantive area or the procedural form (legislation versus initiative).

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

The 2010 wave of state-sovereignty and nullification measures reflected political concerns about federal overreach during a particularly active federal legislative period (post-bailout legislation, ACA debate, EPA GHG regulation). Most measures shared the same constitutional defect: a state cannot decide which federal laws apply within its borders.

The 16th Amendment was ratified in 1913, establishing federal authority over income taxation. The Supremacy Clause analysis is well-settled: states cannot nullify federal tax authority. McCulloch v. Maryland (1819) is the foundational case for the broader proposition that states cannot use their power to tax or regulate to interfere with the operations of the federal government.

Common questions

Q: What does "state sovereignty" mean in this context?
A: The petition title used "state sovereignty" to advance the political theory that states retained authority to nullify federal law contrary to constitutional limits. The legal reality is that the 10th Amendment reserves only powers not delegated to the federal government and not prohibited to the states. Federal income taxation is delegated to Congress under the 16th Amendment and the Necessary and Proper Clause.

Q: Could a state refuse to administer federal tax law?
A: A different question. Under Printz v. United States, 521 U.S. 898 (1997), states cannot be commandeered to administer federal regulatory schemes. But that limit does not give states authority to block federal officers from collecting federal taxes. The IRS administers federal income taxation; the state's role is administrative cooperation only.

Q: Did this initiative reach the ballot?
A: This is the certificate of review. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.

Q: How does this compare to the IRS Prosecution initiative the AG reviewed the same week?
A: They are companion measures. Both targeted federal income tax enforcement. The IRS Prosecution initiative tried to authorize sheriffs to block IRS enforcement; the State Sovereignty Act tried to authorize the state to withhold federal tax revenue. Both ran into the same Supremacy Clause analysis.

Citations and references

Constitutional and statutory provisions:
- Idaho Code § 34-1809 (certificate of review)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- U.S. Const. amend. XVI (federal income tax authority)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021710f.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 Relating to the State Sovereignty 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

The Initiative Violates the Supremacy Clause

The Supremacy Clause of the United States Constitution provides that federal laws and treaties are "the supreme law of the land." U.S. Const. art. VI, cl. 2. Accordingly, when Congress acts within the scope of its constitutional authority, the laws it enacts may preempt state or local action within that field.

The Sixteenth Amendment to the United States Constitution provides Congress with the power to levy income taxes, without any requirement that the states receive a portion thereof. U.S. Const. amend. XVI. No authority exists for the states to withhold without federal authorization any part of these taxes. No state law, such as this initiative, would permit a state to undertake any denial or abridgment of the federal power to levy and collect taxes without a corresponding federal enactment. It appears that this initiative would likely be preempted.

CONCLUSION

Based upon the above analysis, this initiative if adopted, and subsequently challenged, would likely be struck down as an unconstitutional enactment.

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 Alana Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:

BRIAN P. KANE
Deputy Attorney General