Arizona State Lawmakers Want to Nullify All EPA Regulations

Arizona conservatives say the federal government has no authority to impose environmental regulations, but similar arguments elsewhere have foundered.

Arizona Gov. Jan Brewer points during an intense conversation with President Barack Obama after he arrived at Phoenix-Mesa Gateway Airport, Wednesday, Jan. 25, 2012, in Mesa, Ariz. Asked moments later what the conversation was about, Brewer, a Republican, said: "He was a little disturbed about my book." Brewer recently published a book, "Scorpions for Breakfast," something of a memoir of her years growing up and defends her signing of Arizona's controversial law cracking down on illegal immigrants, which Obama opposes. Obama was objecting to Brewer's description of a meeting he and Brewer had at the White House, where she described Obama as lecturing her. (AP Photo/Haraz N. Ghanbari)
National Journal
Jack Fitzpatrick
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Jack Fitzpatrick
Jan. 28, 2014, 5:40 a.m.

It’s no sur­prise when con­ser­vat­ive state law­makers in­voke the 10th Amend­ment to re­buke the fed­er­al gov­ern­ment, and it’s all too com­mon that Ari­zona tangles with the Obama ad­min­is­tra­tion.

So it may have only been a mat­ter of time be­fore Ari­zona law­makers did both at the same time.

On Monday, 37 Ari­zona state law­makers in­tro­duced a bill aim­ing to nul­li­fy all En­vir­on­ment­al Pro­tec­tion Agency reg­u­la­tions in the state, ar­guing that the 10th Amend­ment pre­cludes any fed­er­al reg­u­la­tions over the en­vir­on­ment.

Ari­zona con­ser­vat­ives have already cri­ti­cized EPA’s up­com­ing pro­pos­al to lim­it car­bon emis­sions in power plants, call­ing it part of Pres­id­ent Obama’s “War on Coal.” The state has also clashed with the fed­er­al gov­ern­ment in court over its im­mig­ra­tion law and the Vot­ing Rights Act. And Re­pub­lic­an state Sen. Judy Burges, the lead spon­sor of this new EPA bill, has pushed oth­er state-sov­er­eignty le­gis­la­tion, in­clud­ing a bill that would ban cit­ies in Ari­zona from en­act­ing sus­tain­ab­il­ity pro­grams re­com­men­ded by the U.N.

Burges and sev­er­al co­spon­sors of the bill did not re­spond to re­quests for com­ment.

The law­makers join a long list of con­ser­vat­ives na­tion­wide who have cited the 10th Amend­ment when fight­ing fed­er­al agen­cies.

The amend­ment, which grants state gov­ern­ments all powers not ex­pressly giv­en to the fed­er­al gov­ern­ment, has fre­quently been cham­pioned by con­ser­vat­ives on is­sues in­clud­ing health care re­form and gun con­trol. The move­ment has even been col­lect­ively re­ferred to as the “Ten­ther Move­ment.”

At the World Eco­nom­ic For­um on Jan. 23, Texas Gov. Rick Perry spoke in fa­vor of states form­ing policies on same-sex mar­riage, marijuana leg­al­iz­a­tion, and abor­tion, cit­ing the 10th Amend­ment, ac­cord­ing to U.S. News and World Re­port. And in 2013, Sen. Ro­ger Wick­er, R-Miss., in­tro­duced a bill re­quir­ing fed­er­al agen­cies to prove that a rule does not con­flict with the 10th Amend­ment if a state of­fi­cial chal­lenges the rule.

But the prob­lem with Ari­zona’s 10th Amend­ment ar­gu­ment — and those in oth­er states — is that the amend­ment has been largely mean­ing­less for dec­ades. Al­though it gives states any powers not giv­en to the fed­er­al gov­ern­ment, two sec­tions of the Con­sti­tu­tion give the fed­er­al gov­ern­ment nearly any power it wants. The in­ter­state com­merce clause gives the fed­er­al gov­ern­ment the right to reg­u­late com­merce, and the ne­ces­sary and prop­er clause gives it the power pass any laws ne­ces­sary to carry out its oth­er powers.

With those clauses of­ten lib­er­ally ap­plied, the Su­preme Court ruled in sev­er­al cases in the early to mid-20th cen­tury that the 10th Amend­ment was a prom­ise that the fed­er­al gov­ern­ment would re­spect the states, but that it had es­sen­tially no leg­al power.

In 1941, Chief Justice Har­lan Stone wrote that the amend­ment was all but point­less: “The amend­ment states but a tru­ism that all is re­tained which has not been sur­rendered.”

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