The Missouri Legislature, Unhinged Again

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Earlier this year it was considering nullification of all non-conservative federal statutes. Now, it wants to criminalize enforcement of the federal health-care law.

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What in the world is happening in Missouri? Don't state lawmakers there have more important things to do with their time, and more practical causes to advance on behalf of their many constituents, than ginning up one unconstitutional piece of legislation after another? Is the political process in Jefferson City so hijacked by radicals that it cannot help itself? What a waste of public office. And what an embarrassment to the good citizens of the Show Me State.

Just 10 days ago, I wrote about SJR 45, a Tea Party-infused measure (part interposition, part nullification, part secessionism) that would purport to give Missouri the power to disregard federal law -- and federal-court rulings interpreting and enforcing that law. SJR 45 evidently hasn't yet made it out of the state senate yet, and the entire legislature would have to approve the proposed constitutional amendment before Missourians could vote on it. But even if all of that were to happen the law would have zero chance -- none -- of passing constitutional muster upon judicial review. Like people, states don't get to pick and choose which federal laws they want to obey.

SJR 45 is bad. But HB 1534 is worse. Without waiting for the U.S. Supreme Court or Congress to resolve the issue, HB 1534 unilaterally declares that the Affordable Care Act is, in fact, bad law. Roaring off the cliff, the proposed state statute then makes it a crime -- punishable by up to one year in prison -- for any federal official to enforce the health-care law. And then the proposed measure gives private citizens a right of action to sue state or federal officials -- for money damages! -- for enforcing the Affordable Care Act. Silly you, you thought Republican lawmakers were against frivolous lawsuits.

Here is the pertinent language of HB 1534, Introduced in the state house by GOP Rep. Kurt Bahr, and co-sponsored by another Tea Partier, GOP Rep. Andrew Koenig:

This bill declares that the General Assembly finds the federal Patient Protection and Affordable Care Act signed by President Obama exceeds the powers granted to Congress under the United States Constitution. Therefore, it is not law and is altogether void and of no force. It is the General Assembly's duty to enact any measure necessary to prevent its enforcement within this state.

No public officer or employee of this state has any authority to enforce or attempt to enforce any aspect of the act. Any United States official, agent, or employee who undertakes any action within this state that enforces or attempts to enforce the act in violation of these provisions will be guilty of a class A misdemeanor. Any person who has been subject to any action attempting to enforce the act within this state will have a private cause of action for declaratory judgment and damages against any person violating these provisions.

What's wrong with this measure? The better question is: What's not wrong with it? First, a state cannot unilaterally declare a federal law to be void. Second, a state legislature cannot constitutionally enact legislation designed to prevent the enforcement of a federal law. Third, a state may not criminalize official behavior that is authorized by federal law. Fourth, a state may not create a private right of action that permits its citizens to sue federal officials for properly enforcing a valid federal law. I could go on, but you get the idea.

What's so disappointing here isn't just that one or two anti-government zealots are introducing these sorts of dead-end measures. Unfortunately, that happens all the time all across the country. What's more disturbing is that so many other elected officials seem to be enabling these legislative fantasies by following along. HB 1534 isn't just one man's twisted vision of the Constitution. It passed the Missouri House on April 19 with no fewer than 108 votes. (The vote was 108-44 with 100 Republicans and eight Democrats voting for the measure. Not a single Republican lawmaker voted against the measure. Not one).

Are there really 108 state house officials in Missouri who believe their state may lawfully send federal officials to prison for enforcing a federal law? Are there really 108 members of that legislative body who believe that Missouri, and not the Supreme Court or Congress, gets to decide the fate of federal laws? Or are there instead 108 politicians in the state house who know their law couldn't possibly be enforced, ever, but who want to score political points anyway? It feels like a bad version of a high school's student council.

On Thursday, HB 1534 was referred to the state senate. There, and perhaps soon, a new set of lawmakers will be given the opportunity to opt in or out of the craziness this measure represents. And then, in November, Missouri voters will have their own chance to express their views about this type of state action. In the meantime, every moment the state's elected officials spend fantasizing about HB 1534 is a moment they are not spending on solving the real problems the state's residents face.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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