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HELENA - Montana may be part of this United States, but in the halls of the state Legislature, some Republicans are saying Montana can and should ignore federal laws it doesn't like - by declaring them "null and void."

From health care reform to food safety laws to the Endangered Species Act, GOP lawmakers this session are targeting laws for "nullification," proposing bills that put Montana on record as declaring these laws unconstitutional and not enforceable here.

Rep. Derek Skees, R-Whitefish, has even proposed setting up a permanent legislative commission that could review any federal law for possible nullification by the Legislature.

Skees told a House panel last week that Montana voters put Republicans in power this session because they want to stop an out-of-control federal government.

"This is an attempt to help answer that mandate," he said of his House Bill 382. "Our job is to make sure the citizens of Montana are not trampled on. This gives us the right to say, ‘Wait a minute - that's not good for Montana.' "

The push for nullification is part of a national movement, taken up mostly by conservatives, declaring that states have the power to decide whether Congress has exceeded its authority as spelled out in the U.S. Constitution.

"There are things that the federal government gets to do, as defined in the Constitution," says Bryce Shonka, deputy director of the 10th Amendment Center, a Los Angeles-based group promoting nullification. "But the list of responsibilities that the government currently oversees is far beyond what the founding fathers intended."

Others, however, say nullification is a gross misreading of the Constitution, perpetrated largely by right-wing extremists who don't like popular programs passed by Congress and want to undo them, by any means necessary.

Garrett Epps, a law professor at the University of Baltimore, says the Founding Fathers meant to give the federal government broad, fluid powers in the Constitution, and that nullification proponents are twisting its language to give states powers they don't have.

"There is nothing in the Constitution, by test or implication, that says states have the right to decide that Congress' laws are unconstitutional," he says. "That's simply not a state function. Over the years, we've developed having the courts serve this function. ...

"This is crackpot stuff with a very disreputable history. It makes as much sense as saying the Legislature can repeal the law of gravity or say that pi equals three."

Senate Minority Leader Carol Williams, D-Missoula, also calls the parade of nullification bills a colossal waste of time.

If Montana lawmakers or citizens don't like a federal law, they should take it up with Congress, she says.

"This is not our job," Williams says. "We have a state budget to pass. We have schools and a university system to fund, and health care to fix in this state. We should not be wasting our time, day in and day out, on these bills that have absolutely no chance of making a difference."


Republican legislators are sponsoring nearly a dozen bills or resolutions tied to nullification theory, saying states have the power to declare federal laws unconstitutional and therefore ignore them.

Rep. Krayton Kerns, R-Laurel, is among the most vocal proponents of nullification. He's sponsoring HB321, which declares the U.S. Endangered Species Act "null and void" in Montana and makes it a crime to enforce it.

"Nowhere has the Constitution given the federal government the authority to determine the number and type of species allowed in each state," he says. "We have a predator (the wolf) that has been dictated that we must harbor and care for this thing, regardless of the havoc and destruction it causes."

Kerns, who pulls a copy of the U.S. Constitution from his jacket pocket as he talks about nullification, points to the 10th Amendment as the foundation of his argument.

The 10th Amendment says powers not delegated to the federal government "are reserved to the States respectively, or to the people." Therefore, he and his allies argue, if a power isn't among those spelled out for Congress in the Constitution, it remains for the states to decide.

"It's Montana's decision on how many wolves, how many sage grouse, how many grizzlies we want," he says.

The Constitution gives Congress express power to do many things, such as collect taxes, provide for "the common defense and general welfare of the United States," regulate commerce and coin money.

Those pushing nullification or some form of states' rights say Congress has exceeded those powers and can be reined in by the states.

Rep. Tom Burnett, R-Bozeman, is sponsoring a bill that says food grown, processed and sold within Montana borders is exempt from any future federal food-safety laws, declaring those laws null and void in Montana.

Burnett also is sponsoring HB284, which forbids state employees from doing anything to implement or analyze the federal health care reform law.

Burnett says HB284 is not a nullification bill, but rather a "federalism bill" that "asserts the proper role between the states and the federal government." While Congress has ordered the states to implement portions of the federal health care law, the state Legislature retains power to authorize spending, he says.

"We shouldn't just sit idly by and accept everything that comes from Congress," he says. "That makes the state servile creatures. That's not the original intent of the Constitution. We're not just administrative units for the central government."


Epps, who has been following the 10th Amendment movement across the country, says nullification was cited by slaveholders in South Carolina before the Civil War and Southern states during the civil rights era in the 1960s, when they wanted to defy federal law.

"When states start trying to nullify the acts of the federal government, someone gets hurt, and when I say ‘hurt,' I don't mean their feelings," he says.

While the 10th Amendment says powers not granted to the federal government are "reserved for the states," Epps notes that the Constitution also says Congress has the power to "make all laws necessary and proper" for carrying out its power and that federal law "shall be the supreme law of the land."

Case law, including decisions by John Marshall, the first U.S. Supreme Court justice and a constitutional delegate, also has made it clear that Congress has broad powers to regulate commerce and many things flowing from the powers expressed in the Constitution, Epps says.

"It's a Constitution; it's not a legal code," he says.

None of that phases nullification proponents, who say the Constitution's authors mistrusted big government and created a framework that allows the states to decide whether their creation - the federal government - had gone too far.

"When enough people and states say ‘no' to Washington, there's not much Washington can do about it," says Michael Boldin, founder of the 10th Amendment Center. "It's really about local governance, what the people in the states decide, and that's really what the founders intended."

Kerns says if nothing else, nullification bills before the current Legislature will spur discussion about how and whether states should put a stop to federal spending and programs many regard as excessive.

"Eventually, states are going to have to stand up and say enough is enough," he says. "Our federal government is $14 trillion in debt. ... There are some tough decisions that will have to be made. Does this Legislature have the ability to make these decisions? I don't think so, but someday they will."


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