A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
Twenty Republicans joined 41 Democrats yesterday to vote down HB-274, Rep. Nancy Ballance’s unconstitutional Sheriffs First bill that would subordinate the authority of federal officials to county sheriffs. Five Flathead Republicans voted for the bill (see Flathead tally below).
I recommend reading the entire legal review note, but here are the money quotes:
As drafted, LC0507 may raise potential legal issues regarding whether the proposed legislation complies with federal law. The Supremacy Clause of the U.S. Constitution provides:
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.
U.S. Const., Art. VI, cl. 2. The Supremacy Clause provides that if a conflict between state and federal law exists, federal law controls and state law is preempted. The U.S. Supreme Court has held that “[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, ‘any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.” Gade v. National Solid Wastes Mang. Assoc., 505 U.S. 88, 108 (1992). In addition, the U.S. Supreme Court has held that states must “enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law…” Printz v. U.S., 521 U.S. 898, 913 (1997).
The proposed legislation could prohibit federal employees from investigating suspected violations of federal law and potentially enforcing federal law. As such, LC 0507 may raise conformity issues with the Supremacy Clause of the U.S. Constitution. If a federal statute required a federal employee to investigate and enforce a federal law, but the county sheriff refused to grant permission to the employee, the federal agent could not comply with both the state and federal law. The U.S. Supreme Court has held on several occasions that federal preemption exists when “compliance with both federal and state regulation is a physical impossibility”. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); See also McDermott v. Wisconsin, 228 U.S. 115 (1913). LC 0507 may also prohibit or interfere with a properly issued warrant from a federal judge, which could directly impede federal law enforcement efforts.
How any legislator could vote for HB-274 after reading the legal review escapes me. It’s pure John C. Calhoun antebellum nullification theory, constitutional nonsense. If legislators who voted for HB-274 thought they were sending a message, I have news for them: yes, you sent a message — you shouted to the heavens high that you’re irresponsible and in violation of the oath of office you took when you were sworn in as a member of Montana’s legislature:
Article III, Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” No other oath, declaration, or test shall be required as a qualification for any office or public trust. [Highlighting added.]
How all representatives voted (Excel spreadsheet).