Montana Lawmakers and Others Flex Their States' Rights Muscles

Montana Gov. Brian Schweitzer has never been shy about giving the federal government a piece of his mind. But the new state legislature is taking it a step further. It is considering a dozen bills that aim to nullify various federal laws within Montana's borders -- bills Schweitzer considers "un-American."

Montana certainly isn't alone in challenging Washington. In the wake of health care reform passed a little less than a year ago and midterm elections that installed conservatives at all levels of government, the states' rights movement is enjoying a Renaissance. The recharged anti-federal culture can be found in several statehouses -- from Olympia to Des Moines to Tallahassee -- that are considering similar bills that try to override the federal government.

In Montana, Schweitzer, a Democrat, has questioned not only the intent of such legislation brewing in the Republican-dominated legislature, but the sources of many of the bills here and elsewhere.

"These nullification bills aren't just sprouting up naturally state by state," Schweitzer said in an interview. "These notions are cooked up, conjured up and handed down as talking points and bill language that are passed to legislatures around the country."

Schweitzer didn't mention specific sources, but Michael Boldin, director of the Los Angeles-based Tenth Amendment Center, takes responsibility for many of the anti-health care bills. "There are 11 states that have taken our model legislation and introduced it verbatim or a modified version," he said.

Upwards of 19 statehouses are poised to consider bills that would invalidate the Patient Protection and Affordable Care Act, but in Montana nullification fervor has spread beyond health care. One proposal would make it a crime to enforce federal firearms laws on any gun manufactured in the state. Another would invalidate the Endangered Species Act. A third would strip the Environmental Protection Agency's ability to regulate greenhouse gas emissions.

"We have a bill that would be on Colbert if it wasn't real," Schweitzer said of House Bill 382, which, in his words, would have established "an 11-person commission to review all the federal laws and decide which ones we want to follow." That bill was voted down 57-42, but had it become law, Schweitzer said the commission would have had "more power than the president of the United States or the Supreme Court."

As a two-term Democrat in a state known for its strong libertarian streak, Schweitzer earned his popularity in no small part by bucking Washington, D.C. Shortly after his 2005 election, he called on the Pentagon to return Montana's National Guard troops deployed in Iraq so that they could help fight wildfires at home. Three years later, he led a public charge against the Real ID Act and told NPR that the best way to deal with the federal government is "to just tell them to go to hell and run the state the way you want to run your state."

Recently, Schweitzer squared off twice with the Department of the Interior. First he blocked plans for federal and state authorities to slaughter 500 wild bison to contain possible cases of the disease brucellosis and told the agency to find a better solution. He followed that with a letter to Interior Secretary Ken Salazar informing him of Montana's plans to disobey federal laws protecting endangered wolves because the animals were hunting and harassing livestock and elk herds. In both cases, the governor put his state's interests above what he saw as impractical federal laws.

Montana's House Majority Leader, Republican Tom McGillvray, sees his caucus' nullification attempts in similar terms. "We are independent states," he said, "and sometimes when federal law is so onerous, you have to say 'Wait a minute, this thing is going overboard.'"

He acknowledges the bills don't have much chance of becoming law, yet believes the effort is worth it.

"I'm sure the governor will probably veto them if they get through the Senate," he said. "Even if they are vetoed, the statement has been made that sometimes the federal government gets too heavy-handed," McGillvray said.

Jim Lopach, a University of Montana political science professor, said the distinction between Schweitzer and McGillvray may be more a matter of degree than of substance. "The governor has absolutely been a states' rights advocate in the past, but I don't think he ever claimed the right of the state to nullify federal law." Defying Washington on something like wolf management is, Lopach said, an act "closer to civil disobedience."

Schweitzer sees a distinction between his executive pioneering and the legislature's current actions. The so-called nullificationists, he said, have no "logical, coherent legal argument."

"I've spoken to a few [legislators], and what you get is a lot of gobbledegook and quoting from the Magna Carta, stuff that legal experts say means nothing. It's like they are using random words from law school in no particular sequence."

Schweitzer pointed to the unprecedented number of bills -- 92 -- that the Montana legislature's own legal department has marked as legally or constitutionally questionable.

"This session we have a lot of new legislators, and a lot of legislators who have certain ideas of what the Constitution says and how it works," said Susan Byorth Fox, the five-year director of the state's nonpartisan Legislative Services Division. Fox said that every session brings a number of legally questionable bills from lawmakers who "want to be bold. But "it's never happened to this extent," she said.

Despite the passionate motives behind nullification bills, constitutional scholars like Lopach are in near-unanimous agreement: nullifying federal law at the state level is a long shot at best.

Schweitzer isn't even sure of the objective.

"It's difficult to access their motives," he said. "What is the natural sequence of events when you do this, when you say you no longer want to be part of the Union? If we are going to secede, are they going to close Malmstrom Air Force Base and shut down the intercontinental missiles?"

McGillvray called nullification a responsibility. "It's incumbent on us to carry out bills that represent our constituents' concerns," he said. As to the charge that the efforts are "un-American," he objected strongly. "It is patriotic to question and challenge the function of the law. That's what judicial review is all about."

And judicial review is almost certainly where the entire dust up is headed. The Supreme Court has been called The Umpire of Federalism, and Lopach said it earned that nickname for good reason. In recent years the court's moderate and conservative voices have "pushed the idea that the states have a core of sovereignty that the government cannot invade," Lopach said.

But, he added, "it is ultimately up to the court to chart out the boundaries of that core sovereignty."