Idaho Falls Rep. Barbara Ehardt may claim the “main branch of government is actually the legislative body.” But Rep. Sage Dixon, R-Ponderay, has the hubris to prove it.
Others may challenge Gov. Brad Little’s authority to manage a once-in-century public health emergency.
Erasing the voters’ ability to pass their own laws at the ballot box is a chore his colleagues can handle.
As far as undermining the attorney general, stomping on the ability of local agencies to fight back against COVID-19 infections with facemask mandates or dictating to Idaho’s public institutions of higher learning what they can and cannot teach, Dixon is content to delegate such handiwork to lesser lights in the Legislature.
Instead, Dixon intends to walk out of this year’s legislative session with a good deal more clout than he walked in with.
Along with Sen. Steve Vick, R-Dalton Gardens, Dixon is co-chairman of the Legislature’s Committee on Federalism. Sens. Dan Johnson, R-Lewiston, and Carl Crabtree, R-Grangeville, are among its 10 House and Senate members.
In the two years since it was formed, the panel hasn’t accomplished much — and it’s slated to go out of business this year.
Instead, the committee’s membership wants a permanent lease on life. A bill to that effect already has cleared the House.
And Dixon wants to transform it into the arbiter of the federal government’s authority within the Gem State.
Tuesday, Dixon urged the House State Affairs Committee to empower his panel to nullify “federal executive orders, agency orders, rules, policy directives, regulations, acts of Congress or federal court rulings ... that go beyond the powers enumerated to the federal government in the Constitution of the United States.”
Here’s how it works:
Any legislator can approach Dixon’s committee with a complaint about federal overreach. If — as an attorney general’s review spells out —a majority of the panel’s members agree, the state and its political subdivisions — such as cities, counties and school districts — can not “take any action or use any resources to give effect or enforce the challenged federal action until a final determination is made. ...”
It then conducts public hearings and makes a recommendation to the full Legislature, which decides if the federal action is “outside the scope of federal authority.” Presumably, that could be months away — and given the proclivities of the current Legislature, there’s no guarantee that the challenge will be dropped.
That’s not to say the federal government doesn’t cut corners and deserves to be held to account. Washington Attorney General Bob Ferguson successfully challenged actions of the Trump administration — such as a travel ban on residents from seven Muslim countries — in the federal courts because the former president did not follow the law.
But Dixon’s plan to unilaterally concentrate such discretion within a group of part-time state lawmakers is fighting a losing battle against:
l The U.S. Constitution. Embodied within it is the “Supremacy Clause,” which holds that the federal law “shall be the supreme law of the land.”
l The U. S. Supreme Court, which — unlike the Idaho Legislature — has the power to say what is and what is not contrary to the Constitution and the law.
l A century and a half of history. Nullification and its offspring, the Civil War, were put down at Appomattox Courthouse.
So, as the attorney general’s office puts it: “That temporary, and ultimately unjustified disobedience could lead to liability, even if a conflict between Idaho and the federal government never materializes.”
Like so many of his colleagues, Dixon chooses to ignore such legal advice.
“A lot of this will end up in court, I’m sure of that,” he told the House State Affairs Committee. “This is us flexing our muscles as a state that we need to do. And it is a growing argument throughout many states in the U.S., so I think we’ll see this popping up more across the country.”
Just in time, Gov. Brad Little has signed a bill replenishing the Legislature’s legal slush fund with $4 million.
If Dixon has his way, a lot of that money is going to evaporate pursuing this lost cause in the courtroom.
But what does he care?
It’s not his money. — M.T.