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Wasden and the stresses of law

mendiola MARK


The rule of law is the basis of freedom and security in the United States, binds Americans together as a society and distinguishes the U.S. from many nations, Idaho Attorney General Lawrence Wasden says.

It also is the guideline he says he uses as Idaho’s top law enforcer when he must render difficult decisions on controversial legal issues such as Idaho nullifying the Patient Protection and Affordable Care Act (“Obamacare”), managing federal lands, funding public education or regulating the influx of nuclear spent fuel.

Elected Idaho’s 32nd attorney general in 2002, Wasden is the longest serving attorney general in the state’s history and was president of the National Association of Attorneys General from 2006-2007. He earned a political science degree from Brigham Young University and a law degree from the University of Idaho.

Idaho Attorney General Lawrence Wasden, center, converses with attorney Timothy Hopkins, right, and Areva Vice President Robert Poyser in Idaho Falls. (photo/Mark Mendiola)


“Sometimes public service can be a challenging experience,” Wasden told City Club of Idaho Falls members before answering questions during a Q&A session following a recent luncheon, noting his office processes 5,000 to 6,000 legal matters at any given moment.

Wasden was asked about the Idaho Tax Commission’s ruling that same-sex couples recognized as legally married in other states must recalculate their Internal Revenue Service filings before filing their state returns. Idaho is among 35 states that forbid same-sex unions following a constitutional amendment approved in 2006 by voters.

The IRS has ruled that same-sex couples will be recognized as married for federal tax purposes. Wasden said he would defend Idaho’s constitutional amendment, adding he was disappointed and critical of his counterpart in California who refused to represent citizens in that state who had voted against recognizing same-sex marriages.

Wasden was one of the nation’s first attorneys general to file a lawsuit challenging the federal health care law’s constitutionality, but when the Idaho Legislature tried to nullify the federal law by enacting a state statute, he told the legislators what they were trying to do was unconstitutional.

“Whether I agree or disagree is not relevant,” Wasden said, mentioning he was accused of being “secretly pro-Obamacare” by contradicting the state’s lawmakers. “Congress took its vote.”

Article 1, Section 8 of the U.S. Constitution grants Congress the power to regulate commerce, but Wasden said it was his view that Congress was attempting to regulate non-commerce with the health care legislation.

Five Supreme Court justices agreed that Congress could not compel someone to engage in commerce, but decided that the federal health care law was legal under Congress’ right to exercise its taxing power.

“I disagree with the chief justice of the Supreme Court, but his title trumps mine,” Wasden said. “Whether I agree or disagree, I cannot ignore it. The rule of law really is a matter I hold dear to my heart.”

When asked how much Idaho spent challenging the Affordable Care Act, Wasden estimated the cost was between $5,000 and $6,000, with Idaho sharing legal expenses with 25 other states.

A certain event that started at Fort Sumter, S.C., in 1861 and concluded at Appomattox, Va., in 1865 — i.e. the U.S. Civil War — settled the matter, Wasden said, stressing the U.S. Supreme Court has ruled that governors and legislatures cannot nullify federal law.

“Six hundred and 80 thousand Americans lost their lives to answer the question whether states have the authority to nullify federal law,” he said.

In 1954, the U.S. Supreme Court unanimously ruled in the landmark Brown v. Board of Education case that state laws establishing separate public schools for black and white students was unconstitutional. As a result, racial segregation was ruled a violation of the equal protection clause of the U.S. Constitution’s 14th Amendment.

When an Arkansas governor called out his state’s National Guard to block nine black students from entering a high school in 1957, U.S. President Dwight Eisenhower — “a Republican with certain military experience” — deployed the 101st Airborne Division from Fort Campbell, Ky., to Arkansas and federalized the state’s National Guard in response.

When asked if the Idaho Legislature could be violating the state constitution by under funding public education, Wasden said the court and Legislature ultimately must decide whether the funding mechanism is sufficient.

While states do not own or have the ability to take back federal lands, Wasden said he thinks the federal government violated its trusts by failing to provide Payment in Lieu of Taxes (PILT) funding to the states.

Asked about the possibility of Idaho renegotiating Gov. Phil Batt’s 1995 agreement with the U.S. Department of Energy, which settled a lawsuit filed by the state to prevent spent nuclear fuel shipments to the Idaho National Laboratory for storage, Wasden noted that DOE had made broken promises many times to Idaho.

The agreement gave Idaho the ability to hold the DOE secretary in contempt and impose fines. Complimenting DOE for its accomplishments, Wasden noted a deadline was missed last December and an influx of waste had to be stopped. The Batt agreement is important for maintaining trust, he said.

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