This isn’t a hard problem to fix. This is in the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
All Idaho has to do is to tell the federal government: you do not have the power given to you in the US Constitution to make homosexual marriage legal; or to make abortion legal; or to say that someone has to make a cake for someone; or what animals can graze on our lands; or …
An effort to make the Idaho Legislature the “final arbiter” over the constitutionality of any federal law, regulation or court decision sailed through the House State Affairs Committee on Tuesday.
There was no discussion or questions regarding the bill, which is sponsored by Rep. Paul Shepherd, R-Riggins. It was introduced on a unanimous, if somewhat half-hearted, voice vote.
“The purpose of this bill is to provide a legal process to bring checks and balances for all federal actions that may be unconstitutional,” Shepherd said during his brief introductory remarks.
He introduced an identical measure during the 2017 session. An Attorney General’s opinion questioned the legality of several sections of the bill.
The legislation “hereby declared that the state of Idaho, on behalf of its citizens, is the final arbiter of whether an act of Congress, a federal regulation or a court decision is unconstitutional.”
It goes on to say that any member of the Legislature can bring forward a bill claiming that “any executive order, federal law, federal regulation, federal court or U.S. Supreme Court decision is not constitutional, compared to the original intent of the U.S. Constitution.”
Were the Legislature to subsequently approve such a bill, then the federal actions in question “are hereby declared to be unconstitutional.”
Article VI of the Constitution notes that “this Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.”
The role of the U.S. Supreme Court as the final arbiter of the constitutionality of laws was established in 1803, in Marbury v. Madison. However, as with many Supreme Court decisions, there continues to be disagreement over the ruling.
Shepherd noted that all state lawmakers take an oath to uphold the U.S. and Idaho Constitutions. The best way to fulfill that oath, he said, is to create “a legal process in statute” that allows them to question federal overreach.
His bill last year never received a public hearing.