Writings and observations

In Idaho as in many places, a lot of conservative Republicans make a great sound about adhering to and upholding the constitution – as self-described “constitutionalists.” So how does that work out in practice?

The House State Affairs Committee this morning introduced a measure (bill number yet to be assigned), by Republican Representatives Judy Boyle, Midvale, and Vito Barbieri, Dalton Gardens, which says (in Barbieri’s paraphrase): “The federal health care laws recently passed by the U.S. Congress have invaded the traditional sovereign powers of the state. This bill declares that this intrusion by the federal government is … null and void.” The vote to introduce was party-line, all Republicans in favor.

Democrats had a variety of issues to raise, though those evidently had little pull. After Barbieri offered an estimate of savings to the state of $228 million if the federal law were nullified (here’s a good one for PolitiFact to check out), Representative Phylis King, D-Boise, had a more immediate query. She “said the state Department of Insurance already has received $2 million from the federal government to start setting up health care exchanges. “This is the law of the land. So are we going to give it back? Are those folks working on this, are they going to be fired?” she asked. Barbieri said, “It’s inestimable, and that’s the difficulty.””

Some difficulty.

Not all indicated they will necessarily support the measure later. At least one, Representative Lynn Luker of Boise, pointed out that as a legislator he swore to uphold the constitution of the United States, and this bill … well, might run afoul of that.

Luker’s concern is much more than just speculative. A state attorney general’s opinion delivered on January 21 was conclusive: While federal laws can be challenged for constitutionality in the courts (and Idaho is among the state lawsuit challengers to the health care care law), state legislature have no authority to overrule a federal law.

From the AG’s opinion: “Once Idaho was admitted as a State it acquired all of the privileges and immunities held by each of the other States, but as reflected above, the right of nullification, the right of secession, and the compact theory had all been rejected by the United States by the time of statehood. The framers of the Idaho Constitution were acutely aware of that fact. Article I, § 3 of our Constitution states: ‘State inseparable part of Union.-The State of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.’ The framers therefore expressly recognized Idaho’s status as a part of the United States and the supremacy of the United States Constitution. Consistent with this recognition, every legislator is required to affirm “that I will support the constitution of the United States and the constitution of the State of Idaho.” Legislators and other state officials, in other words, pledge to carry out their duties in a fashion that directly conflicts with the second form of the nullification theory. The alpha and omega of the nullification theory, in sum, rest upon rejecting the principle that the United States Constitution as the supreme law of the land.”

And here we thought Barbieri and Boyle, and many of the Republicans on the State Affairs Committee, were among the corps of self-described “constitutionalists.” Or if they are, what could the term possibly mean?

UPDATE Noting reports about a book being delivered en masse to legislators, Nullification by Thomas Woods, a book cuirculated nationally among the networks of the right. (National Public Radio reports: “As a college student in 1994, Woods helped found the League of the South, an Alabama group the Southern Poverty Law Center says has become a “neo-Confederate group” seeking a second Southern secession. Woods told the AP last week he thinks states have a right of secession, but he doesn’t support the Confederacy’s return. He’s no longer a member.”)

A suggestion: Read Garry Wills’ excellent A Necessary Evil: A History of American Distrust of Government, a fine overview of the subject, with some concise but clear and ample discussion of the problem of nullification.

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Idaho


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Chris Carlson
Carlson Chronicles


On January 7, before the High Noon formal and ceremonial swearing-in to a second term as Governor of Idaho, C. L. “Butch” Otter and his wife Lori had a Mass of Thanksgiving at Boise’s St. John’s Cathedral.

The Gospel reading was taken from the New Testament Book of Matthew, chapter 25, verses 14 through 29, the well-known “Parable of the Talents.” The homilist did a marvelous job of relating the reading to the trust being placed in the governor’s hands and Butch’s obligation to be a good steward of the state he will lead for another four years.

The homilist, however, had no idea how appropriate his homily was, nor how much this listener felt Governor Otter already had stumbled badly in his stewardship right out of the starting gate of his second term.

Unbeknownst to the homilist, indeed, unbeknownst to hardly anyone, with little fan fare and no public process, the day before Governor Otter signed an agreement with the U.S. Department of Energy that will be the crack in the door which quite possibly will swing wide open and turn Idaho into the nation’s new Yucca Mountain, bringing tons of nuclear commercial waste into this state for the first time ever.

With one stroke of his pen Butch turned away from a bi-partisan policy followed by every governor since Cecil Andrus negotiated a commitment from the Federal government to remove all of the poorly stored transuranic waste sitting above Idaho’s sole-source aquifer and ship it to a site in New Mexico’s salt caverns for repackaging and storage.

And since the early 70’s the thousands of canisters containing this waste has been shipped out of the state away from the precious Snake Plain Aquifer. Now, Idaho will start to take in commercial nuclear waste, allegedly for utilization in various research projects.

Calculate the math on how much will start heading this way and one quickly concludes it is far more than is reasonably needed for research. Not to worry say the Feds and the governor. The Department of Energy says it still intends to honor the section of the 1995 agreement started by Andrus and finished by Phil Batt which says ALL nuclear waste will be removed from Idaho by 2035.

Sadly for Idaho, Governor Batt broke ranks with Governor Andrus and chose party over principle, questionable promises from the Feds over real-life experience, and his friendship with Otter over his friendship with Andrus.

Somehow that promise rings pretty hollow and the logic of saying what’s being brought in will be removed, just “trust us,” is mind-boggling and stupefying.

So surely Governor Otter got something for Idaho out of this Faustian bargain? More jobs? More money for the National Engineering and Laboratory site west of Idaho Falls? Nope, my friends. Nada, nothing. No new jobs will be generated and no new appropriations are promised.

Even loyal supporters of the newly-sworn in governor are going to be hard-pressed to defend this indefensible, incomprehensible action.

There has been absolutely zero transparency. There are hundreds of questions begging for answers. Where will this waste be stored? How will it be stored? How can the public be assured that there’ll be no leakages down into the aquifer that provides the water for many southern Idaho crops not the least of which are potatoes?

How will it be transported? What are the security arrangements? Why was the public kept in the dark? What did our Congressional delegation know and when did they know it?

No less a great Republican president than Ronald Reagan once said “Trust, but verify!” How will Idahoans be able to obtain verification, especially when this was conceived in secrecy, born in the dark, and sprung on Idaho’s public shortly before the media’s attention was totally focused on Butch’s swearing-in?

I sincerely hope Governor Otter started pondering the real meaning of the homily on stewardship because in this observer’s opinion he quite possibly has so marred his legacy that prospects for his hearing the words “well done thou good and faithful servant” are just about the same as those of the Feds removing what they will be bringing to this state that will bear all the risk and have gained nothing for it. – Chris Carlson

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