March 9, 2011
by Gina Rough
Arizona lawmakers are working to create alliances with other states on controversial issues such as health care, immigration and firearms regulation in a growing effort to challenge the authority of the federal government.
The push to form interstate compacts, which have the power to supersede existing federal law if approved by Congress, is part of a broader effort at the Arizona Capitol to promote states' rights.
Lawmakers have introduced bills that seek to limit congressional spending and federal authority on issues from elections to environmental inspections, and Gov. Jan Brewer lists federalism as one of her top priority initiatives this term.
So far this session, Republican legislators have introduced more than a dozen bills that propose to create compacts, about three times as many as lawmakers introduced in each of the past two or three years. Among them are measures to allow participating states to build a border fence, regulate endangered species without federal interference and set up their own health-care programs.
Most of the bills are working their way through the legislative process.
Even if the House and Senate pass the measures and the governor signs them, Congress would still have to approve them - and other states would have to pass similar legislation.
Critics question the point of the bills and the motivation of the lawmakers promoting them.
"Right now, Arizona is the epicenter for a lot of - and I am trying to be neutral here -innovative strategies for voicing displeasure with federal law," said Greg Magarian, a constitutional-law expert at Washington University in St. Louis. "I have to believe the primary motivation here is political. You pass this and then essentially dare Congress to invalidate it."
Magarian said that it is unlikely that Congress would be willing to sign off on compacts that would essentially give the states a broad range of powers.
"You can't just snap your fingers and make federal law go away," he said.
How it works
The power to form interstate compacts, which are essentially contractual agreements or treaties between participating states, comes from Article 1, Section 10 of the U.S. Constitution.
The "Compact Clause" essentially prohibits states from banding together and issuing their own currency, keeping troops and engaging in certain other activities without the consent of Congress. But, in recent decades, states have used the clause to create agreements to take control of a host of issues not specifically mentioned in the Constitution, such as water regulation, waste disposal or power use.
Nick Dranias, director for the center of constitutional government at the Goldwater Institute, said there are about 200 interstate compacts throughout the country, with the average state participating in about 25 agreements. Arizona, for example, is part of the Colorado River Compact, a 1922 agreement among seven Western states that regulates use of the river's water.
The new push to use compacts, however, is as a means to directly challenge the authority of the federal government. Proponents of states' rights believe the federal government has, in recent years, overstepped its boundaries by suing Arizona over its immigration law and decreeing that all individuals must carry health insurance.
They typically turn to the 10th Amendment to the U.S. Constitution as their legal basis for challenging the federal government. It states that "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."
Compacts are a way of returning control over those issues not specifically delegated to the federal government back to the states, said Sen. Sylvia Allen, R-Snowflake, chairwoman of the Senate's Border Security, Federalism and States Sovereignty Committee.
Allen, the primary sponsor or co-sponsor on several of the compact efforts, said she introduced the bills because "the proper balance" needs to be restored between the states and the federal government.
"The states aren't able to do anything anymore," she said. "We aren't able to do the things we need to do for our citizens."
Two of the measures introduced in this year's session are slated to have hearings in committee today.
The House Military Affairs and Public Safety Committee is expected to discuss Senate Bill 1406, which authorizes the governor to enter an interstate compact to build and maintain a fence along the U.S.-Mexican border.
And the House Health and Human Affairs Committee is expected to hear SB 1592, the health-care compact bill. It proposes an interstate alliance in which states would be responsible for managing and regulating health care within their own borders.
The Senate has passed other bills, including measures to regulate the Mexican gray wolf, but the House still needs to hold committee hearings.
Allen and other lawmakers said they have been in contact with or are working with other states to try to drum up interest in the agreements.
But some measures are having trouble gaining traction in other legislatures.
The compact that has the most momentum is the one that seeks to challenge the new federal health-care law, Dranias and others say.
Seven states, including Arizona, have introduced legislation to regulate their own health care.
The compact would give member states authority to set up health plans and requirements as they sees fit. If participating states received congressional approval for the compact, constitutional experts believe it would supersede requirements in the recently passed federal health-care bill, including a mandate that every individual have health insurance.
Dranias said he believes the compacts could be a powerful mechanism for returning some powers to the states. "This allows states to combine forces to reduce the size and scope and intrusiveness of the federal government."