InigoMontoyaA curious choice of wording in the Arizona Republic today — Gay marriage in Arizona: Some campaigns trying to exploit fight: “Gay marriage became legal in Arizona at the height of the campaign season. That made it irresistible for Democrats to seize on for political gain, while Republicans are largely sidestepping the subject.”

Really? Democrats have long supported civil rights and equal protection under the law for the LGBT community. Friday’s Court victory was a major civil rights victory in Arizona, and celebrating that long sought after policy victory is not “exploitation.”


The Republic’s Laurie Roberts has an example of what the word “exploitation” actually means: the shameless supporters of Prop. 122 from ALEC and the Goldwater Institute are exploiting children caught up in the CPS crisis to mislead voters into supporting an unconstitutional “interposition and nullification” of federal laws ballot measure. Prop. 122 backers hiding behind little children:

The little girl’s brown eyes reach out to you from the mailbox as the caption beside her asks: Will you please HELP ME?

The way to spare this child a beating, we are told, is to pass the latest 19th Century idea from the Arizona Legislature: nullification. Or in this case, nullification lite.

For several years, our leaders have been trying to give themselves the power to ignore the federal government.

Two years ago, it was with a proposed constitutional amendment declaring that Arizona has dominion over the air, water, wildlife and most of its land. The state that had trouble keeping its highway rest stops open wanted to seize control of all national parks, forests and monuments within Arizona. Naturally, voters stoned that idea.

Confederale SoldiersNow comes Proposition 122. Basically, it would allow either the Legislature or Arizona voters to declare unconstitutional any federal laws or mandates they don’t like, then block any state or local resources from being used to enforce or administer those laws.

And so we come to this rather astonishing mailer featuring the little brown-eyed girl and another a bruised child, urging us to “Vote Yes on 122 to protect our children from abuse.”

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But then, Prop. 122 isn’t really about protecting children.

More likely, it’s about protecting certain interests in the state from federal regulations that mandate clean air and safe workplaces and such.

The proposition has been endorsed by a who’s who of Republicans, including Doug Ducey, Mark Brnovich, Maricopa County Sheriff Joe Arpaio and recalled Sen. Russell Pearce. Funny, I don’t recall any of them being particularly vocal in the past about the need to better protect children from CPS.

Prop. 122 also has been endorsed by the dark-money Arizona Free Enterprise Club and Americans for Prosperity, the major political arm of Charles and David Koch. As in Koch Industries, which ranks as the 13th worst air polluter in the country, according to the Political Economy Research Institute.

And who, I am quite sure, are just oh so concerned about Arizona’s abused kids.

As for our Legislature, I can see our leaders getting far more exercised about restrictions on the Second Amendment than on restrictions on release of information about abused children. If this passes, they might happily declare that every Arizonan has right to carry a fully-automatic Uzi around town and forbid any state or local police officer from doing a thing about it.

Or order that no longer will we adhere to inconvenient restrictions aimed at giving us clean air and water or protecting wildlife or the land.

None of which, strangely, is mentioned in the mailer with the little brown-eyed girl.

Will you please HELP ME? she asks.

As for the rest of us we should be pondering a different question:

Is Prop. 122 really about protecting children or hiding behind them?

Prop. 122 is unconstitutional. The U.S. Constitution, Article VI, Clause 2 (the “Supremacy Clause”) provides that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” The Arizona Constitution, Article 2, Section 3 similarly provides that “The Constitution of the United States is the supreme law of the land.”

Americans fought a bloody Civil War over the now long discredited political doctrines of “nullification, interposition and secession.” The post-Civil War 14th Amendment reaffirmed the supremacy of the federal government through the “privileges or immunities clause” – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The U.S. Supreme Court has always rejected the doctrines of “interposition and nullification.” In Cooper v. Aaron, 358 U.S. 1 (1958), the Court held that since the Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land and Marbury v. Madison gave the U.S. Supreme Court the power of judicial review, the precedent set forth in Brown v. Board of Education is the supreme law of the land and is therefore binding on all the states, regardless of any state laws contradicting it. The Supreme Court rejected the doctrines of nullification and interposition, which had been invoked by segregationists.

Segregation supporters argued that the states have the power to nullify federal laws or court rulings that they believe to be unconstitutional and the states could use this power to nullify the Brown decision. The Arkansas laws that attempted to prevent desegregation were Arkansas’ effort to nullify the Brown decision. The Supreme Court held that the Brown decision “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation.” Thus, Cooper v. Aaron held that state attempts to nullify federal law are ineffective.

Moreover, since public officials are required to swear an oath to uphold the Constitution (as per Article VI, Clause 3), for these same officials to ignore the Court’s precedents is equal to a violation of that oath.

Only an Article III federal court can determine whether a federal law is unconstitutional. No state court, no state legislature or political subdivision of a state, nor the citizens of a state acting through referendum or initiative possess the power under the U.S. Constitution to declare a federal law unconstitutional.

Arizona House Minority Leader Chad Campbell got it exactly right in this op-ed, What If: Voters approve Prop. 122?:


Contrary to proponents’ claims, if Proposition 122 passes not a single child will be saved, the Grand Canyon will not become a state park, and Arizona legislators will not be able to tell the federal government how to do its job. (And let’s be honest, the only thing more frightening than Congress running the show is putting the Arizona Legislature in charge, am I right?)

Because no matter what some people believe, states do not have the authority to tell the federal government what to do. It’s called the supremacy clause of the United States Constitution. Attempting to alter the Arizona Constitution will not change it. If this proposition passes, there will be no substantive changes in how we interact with the federal government. The only thing that will happen, and this is a guarantee, is that we’ll end up wasting taxpayer dollars on a court case we are certain to lose.

Furthermore, if Proposition 122 passes, it will erode our already tenuous relationship with the feds and jeopardize desperately needed funding for transportation, disaster relief and other critical programs. So, not only will we be wasting money in court, but we’ll be sending our already paid federal tax dollars to other states. Sounds like a great deal, right?

Once it gets ruled unconstitutional, the only question left to ask is, “What will the supporters of Proposition 122 do next?” Their only option will be to propose seceding from the Union. Think about that for a minute, and I think it about sums up the outlandish nature of any supporting arguments for Proposition 122.

The Tea-Publican supporters of Prop. 122 — the long discredited doctrines of interposition, nullification and secession — are undeserving of your vote. They are violating their oath of office by supporting an insurrection against the U.S. government. SCR1016 passed the Senate on a party-line 16-12 vote (2 not voting). And the bill passed the House on a party line 36-23 vote (1 not voting) to put this measure on the ballot.

This is why Arizona is the favorite subject of late night comedians.