On Wednesday, North Dakota took another step toward becoming a constitutional sanctuary to protect individual rights from federal encroachments. The question now is whether Governor Doug Burgum will put the bill over the top.
By a vote of 51-43, the North Dakota House passed HB 1282, which would create a joint committee on nullification to review all federal laws or executive orders that are suspected of violating the Constitution. The committee, which is to be composed of the House and Senate leadership and six members from each body who would serve for two years, would recommend to the legislative body whether to nullify the federal policies based on constitutional violations. Upon the committee’s recommendation, the legislative assembly, by concurrent resolution, shall consider whether to nullify the federal action.
The consequence of this bill is that if the legislative assembly approves the concurrent resolution by a simple majority, all state agencies or political subdivisions of the state and all individuals employed by a state agency or political subdivision of the state are prohibited from enforcing the said federal law, regulation, or executive order.
Under the proposed legislation, the committee may review all existing federal statutes, regulations, and executive orders enacted before the effective date of this proposed law for the purpose of determining constitutionality and shall recommend whether to nullify in its entirety a specific federal statute, regulation, or executive order.
As I mentioned last week, this bill is probably the most important piece of legislation a state can pass given today’s political climate. It’s exactly what our Founders had in mind in the nightmare scenario where the federal government becomes tyrannical and inexorably hostile to the Bill of Rights. For example, if this bill passes, it would likely force a vote in the legislature on the implementation of the CDC’s unconstitutional and inhumane mask mandate on travelers.
You might notice that this bill only passed 51-43, despite Republicans enjoying an 80-14 majority in the House. More than a third of the Republicans voted against it. These were the 43 no votes: Adams; Anderson, B.; Anderson, D.; Anderson, P.; Beltz; Boe; Boschee; Brandenburg; Buffalo; Devlin; Dobervich; Guggisberg; Hager; Hanson; Hatlestad; Ista; Johnson, D.; Karls; Keiser; Klemin; Longmuir; Martinson; Mitskog; Mock; Nathe; Nelson, J.; Nelson, M.; O’Brien; Ostlie; Owens; Pollert; Porter; Richter; Roers Jones; Sanford; Schneider; Schreiber-Beck; Strinden; Thomas; Trottier; Vigesaa; Westlind; and Zubke.
The bill now heads to the Senate, where Republicans enjoy a 40-7 majority. However, there are many liberal Republicans in the Senate, and the governor has yet to endorse the bill. A number of liberal Republicans have bought into the erroneous notion that only courts can decide the constitutionality of issues. House Judiciary Committee Chairman Larry Klemin opposed the bill on the floor, claiming that it isn’t the legislature’s job to determine the constitutionality of a law.
As chairman, Klemin already watered down another similar bill, HB 1164, which I referred to last week. On Thursday, the new “modified” version of HB 1164 passed 79-13 – with all the fake Republicans pretending to support the Constitution. That bill, as modified, would only allow courts to determine the constitutionality of a presidential executive order, rather than the attorney general, as originally drafted.
Here’s the subterfuge we need to watch out for in other states only pretending to pass constitutional sanctuary legislation. What this effectively does is make the bill do the exact same thing as current practice, effectively gutting the entire effort. Thus, the chairman of the committee gets to brag about fighting for the 10th Amendment and standing up to tyranny, while doing absolutely nothing.
Worse, this bill continues to legitimize the myth that, somehow, only the judicial branch can interpret the Constitution. Indeed, each branch of government – both at the state and federal levels – has an obligation to use its respective powers to protect constitutional rights. For example, with Biden’s illegal and unscientific COVID mandates, it is the executive branch of the state that must defend the Constitution and refuse to implement them and the legislative branch that must prohibit and defund them from being implemented.
The judicial branch of government, with very few exceptions, has ignored flagrant violations of the Bill of Rights for 10 months. Fighting Washington at the local level will become a popular campaign issue for state and local politicians in the coming months and years. Perfidious Republicans understand this and plan to misdirect the grassroots energy away from bills that actually have teeth in them and send that force into a black hole.
If states are going to finally fight back against tyranny, it needs to come from the legislature. It’s time for legislators to stop running away from their constitutional obligations to represent the people and to protect their rights.
In a 2017 report, the Congressional Research Service observed that “early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” Members of Congress weren’t so complacent in their duties and, as the CRS observed, never sat idly allowing the courts to wield “a final or even exclusive role in defining the basic powers and limits of the federal government.” They subscribed to Madison’s view in Federalist #49 that “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” He emphatically believed that “each [department] must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”
Thankfully, the stronger bill, HB 1282, wound up passing over Chairman Klemin’s objections, but this demonstrates the struggle conservatives have even in red states in getting GOP supermajorities in both houses, not to mention the Republican governors, to work for the constitutional sanctuary movement.
As the legislative sessions reach their peak work weeks, conservatives should make HB 1282 the model bill. Rather than empowering the judiciary or even the executive to have exclusive authority over nullifying unconstitutional federal powers, it places the authority in the hands of the democratically elected legislature. This will force red-state Republicans to either finally stand up and fulfill their campaign promises or reveal to their voters that they are a false opposition to the Left, as over 25 Republicans in North Dakota did this week.
In order to make red states red again, we will have to make state legislatures great again.