Posted By: Cynthia Thomas, John Thorpe, Alexis Tinucci, Lucille Tournas, Matthew VanBeschoten, Allison Venezia, Staten Vermeer, and Cody Wahlers
Arizona voters recently passed a measure, by an extremely narrow margin, that purports to allow Arizona to opt out of certain federal laws. Is this constitutional? Can a state ever opt out of federal legislation that it deems unconstitutional? Do the states even have the power to evaluate the constitutionality of federal legislation? This article takes an in-depth look at the bill’s history, its foundations in Anglo-American political philosophy, and a series of Supreme Court cases that shed some light on its constitutionality.
Proposition 122 Background
Proposition 122, or the Arizona Rejection of Unconstitutional Federal Actions Amendment, was approved on the November, 4, 2014, general election ballot as a constitutional amendment to the Arizona Constitution. Under the Proposition, Arizona may opt out of any federal law the citizens of Arizona or the state legislature deem unconstitutional. This means that should the state find a federal act unconstitutional, the state is prohibited from devoting any state resources to the enforcement of the federal law. The federal government is solely responsible for its implementation and enforcement. The proposition amended Article 2, Section 3 of the Arizona Constitution by adding:
A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.
B. To protect the people’s freedom and to preserve the checks and balances of the United States Constitution, this state may exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution by doing any of the following:
Passing an initiative or referendum pursuant to Article IV, Part 1, Section 1.
Passing a bill pursuant to Article IV, Part 2 and Article V, Section 7.
Pursuing any other available legal remedy.
One of the main arguments in support of the measure was that it promotes state sovereignty by acting as a check on the federal government. However, Proposition 122 was not the first attempt to address the sovereignty issue. In 2012, a proposed state constitutional amendment entitled the Arizona Federal Action Rejection Initiative did not make the ballot. However, the terms of the amendment were very similar to Proposition 122. The initiative would have allowed the voters of Arizona to effectively reject any federal action via a veto referendum, also called a statute referendum or a citizen referendum. Under that proposal, if a federal law passed and the citizens of Arizona collected enough signatures, the law could be put on the ballot in Arizona. Once on the ballot, one may vote “yes,” which signifies that the voter does not object to the piece of legislation in question and wants it to become law, or they may vote “no,” which indicates that the voter does not want the piece of legislation in question to become law, and Arizona will not comply with the law should enough people vote “no.” One of the sponsors of the measure, Jack Biltis, stated that part of the impetus for its creation was due to the fear associated with a socialized health care system—the Affordable Care Act. Biltis was also behind the efforts to pass Proposition 122 nearly two years later in 2014. The measure was filed by a group called Checks and Balances in Government, but the measure was not certified and failed to make the 2012 ballot because the group sponsoring the bill failed to collect the mandatory 259, 213 signatures required to get the amendment put on the November 2012 ballot.
In 2014, Proposition 122 was approved as a legislatively referred constitutional amendment to the Arizona Constitution. Unlike the failed 2012 initiative, Proposition 122 would not give citizens of Arizona the option of rejecting or not complying with any federal action. Rather, Proposition 122 would afford Arizona the opportunity to opt out of paying for federal initiatives the voters deem contrary to the Constitution. This means that the voters of Arizona can only vote to end state cooperation, including devoting any monetary resources or personnel to an act’s enforcement, rather than altogether rejecting the federal action. This is what the proposed 2012 initiative would have allowed. Under Proposition 122, the state can determine which federal acts the state deems unconstitutional either by “(1) a ballot measure or (2) vote of the legislature and governor,” Joe Wolverton, II. Proposition 122 just barely passed with 51% of the vote.
Despite the differences between Proposition 122 and the failed 2012 initiative, they both allow Arizona to independently review federal acts and determine their constitutionality. Is this constitutional? Should it be? On closer examination, this bill is grounded in a system of political thought commonly ascribed to Thomas Jefferson and raises two serious constitutional concerns: (1) the misallocation of powers as envisioned by the framers of the Constitution, and (2) the unconstitutional application of the enactment.
Both the text of the bill and the rhetoric employed by its supporters focus heavily on two notions—the principle of state sovereignty and the notion that every government official can, and should, engage actively in constitutional review. Although these notions are at odds with the Madisonian federalism that was ultimately the dominant force behind the U.S. Constitution, the drafters of Proposition 122 didn’t pull them out of thin air. Rather, these notions reflect a mode of political thought favored by Thomas Jefferson, dominant in the Articles of Confederation, but ultimately rejected (for the most part) in the national debate over the nature of our government.
As the founder of the Democratic Party and a great admirer of classical political thought, Thomas Jefferson favored a “civic-virtue” model of democracy, characterized by heavy local participation, an emphasis on popular democracy, and an optimism that voters could be educated, morally and intellectually, to put the common good ahead of their own interests at the ballot box. Unlike Madison, who feared faction (voters favoring their own personal and local interests over the interests of the community) and argued for a large representative democracy and a strong central government, Jefferson feared that a strong central government would threaten liberties and trusted individuals to participate unselfishly and intelligently in local and state politics. Jefferson also advocated for a system in which every government official – not just the judicial branch of the government – had the right and responsibility to decide what was constitutional and what wasn’t.
This Jeffersonian approach required strong state and local political units, which Jefferson favored over a strong national government (perhaps it is fitting, then, that Proposition 122 was passed not by the Arizona legislature, but by popular vote in a referendum—the kind of election Jefferson would have liked to see widespread).
The Jeffersonian emphasis on state sovereignty found ample support in the English political tradition. In this tradition, all sovereignty ultimately derived from the Crown. However, due to the practical challenges of governing a worldwide empire from England, the British monarchs had adopted a longstanding practice of delegating portions of their sovereign power to colonial governors. To be sure, these colonial governors’ actions were unquestionably subject to the King’s approval. But in a time when it could take months to send a letter from America to England, as a matter of practicality, they often operated with nearly complete independence. Thus, after the American Revolution, our fledgling nation inherited a deeply entrenched system in which each of the thirteen colonies enjoyed – and in many cases expected – relative independence.
The Articles of Confederation, authored by Thomas Jefferson almost immediately after the Declaration of Independence and formally adopted in 1781, heavily reflect the twin influences of classical civic virtue and English colonial pseudo-sovereignty. This first American constitution provided for a national government composed of a single branch and delegated powers by sovereign states—analogous to the United Nations, an international organization that is powerless in its own right and dependent on sovereign nations to delegate some of their sovereignty to it.
The Jeffersonian notion of state sovereignty, while profoundly influential, was ultimately on the losing side of the Constitutional debate. Madison’s Virginia Plan, heavily based on the Federalist goals of overcoming faction through large representative democracy and strong central government, was largely the basis of our present-day Constitution. This constitutional model is based not on state sovereignty but on absolute popular sovereignty (made clear by the Constitution’s famous opening words, “We the People…”), which the people delegate to both their state and national governments. To put it starkly, in Madison’s victorious model, there is no such thing as absolute state sovereignty. All sovereignty derives from the people, and what they don’t retain for themselves, they delegate to various officials and bodies in an intricate federalist system.
The Madisonian notion of popular, delegated sovereignty won its most decisive victory over the Jeffersonian model nearly eighty years after the Constitutional Convention, in the Civil War. Lincoln’s pivotal reformulation of the founding principles in his Gettysburg Address—“government of the people, by the people, and for the people—was pitted against the Confederate notion that a state qua state might have rights against the federal government. After a bloody four-year struggle, the federalist philosophy won, once again.
Civil War historian Shelby Foote notes that before the Civil War, people commonly said “the United States are” and accordingly many thought of the United States as “a collection of states.” And after the war, it was “the United States is,” as we say today without being self-conscious. And that sums up what the war accomplished. It made us an is.” While Foote’s grammatical summation of the shaping force of the Civil War on our history may be a bit narrow, he is undoubtedly right about the ideological disagreement over state sovereignty that came to a climax with the war. Those who reify the power popularly delegated to a state as “state sovereign power” put themselves on the losing side of American history. Like the writers of Proposition 122, they favor a concept that our founders considered long and hard, but ultimately rejected— one which, decades later, reared its head again and threatened this nation’s unity before being finally put to rest by force.
However, it is certainly understandable for an American to assume state sovereignty to be a core constitutional notion. The English legal tradition, from which our own system derives and to which it still remains profoundly similar, gave birth to the notion in the form of colonial governors’ pseudo-sovereignty. Our federalist system accords significant powers and duties to state governments, more so than many other developed nations. When we broke with Great Britain, we kept many of its legal and political forms. Nevertheless, it is a mistake to overlook the subtle but profound distinction that in the American federalist system, all sovereignty derives from the people and only some of it is delegated by the people to the states.
A starting place for looking at state sovereignty and how modern federalism works is with the Supremacy Clause in the Constitution:
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.
What were the Framer’s intent in including the Supremacy Clause in Article I? The Federalist Papers give insight as to what Hamilton and Madison meant and their intention for how federalism should work. The Supremacy Clause establishes that the federal government would be the supreme law of the land. Madison made an argument in Federalist Paper 44 that the constitution needed the Supremacy Clause in order to differentiate the new government from the Articles of Confederation, which was a disaster and ultimately led to the constitutional convention in 1787.
During the first few years of the nation, the states had a high degree of autonomy that led to discrimination between states while the federal government, under the Articles, had no power to levy over the states to get them to cooperate with federal law or with each other. The failure of the country under the Articles of Confederation was the impetus to the Constitutional Convention where the Articles were scrapped and the delegates sent by each state created the Constitution that is still the basis for this country today. In the Constitution, Article VI, paragraph 2 reads, “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.” This was considered to be one of the primary functioning clauses of the Constitution by both James Madison and Alexander Hamilton. They write separately in Federalist Papers 44 and 33, respectively, that the Supremacy Clause is vital to the function of the nation and is necessary for the execution of the government’s powers.
In Federalist 44, Madison compares the federalism between the state and national government to that of a body where the state government is the limbs of the body and the national government is the brain. He says that making the federal government subservient to the state governments would be like having the brain subservient to the limbs of the body. Madison continues by making the argument that without the Supremacy Clause, states would not have to comply with federal law and so treaties or federal law would be valid in some states and not in others. The only way to avoid this end is to implement a Supremacy Clause and give the federal government the last say on constitutional matters. The states do not have to worry about usurpation of power by the federal government because they can still only regulate in the spheres of influence designated to them by the Constitution that are not reserved to the states. The states still have the ultimate control over the federal government because of elections. The people vote directly for their representatives in Congress and the President is decided by the electoral vote made-up of delegates from the states. He concludes Federalist Paper 44 by saying, “no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union.”
After looking at the Supremacy Clause, it would seem Prop 122 is unconstitutional because it is making federal law subservient to state governments. Throughout the history of the United States, the Supreme Court has dealt with federalism through various landmark cases where they try to better understand and define how the Supremacy Clause works in conjunction with federalism.
Origins of Judicial Review
Prop 122 attempts to grant the state legislature the power to interpret the Constitution, which has traditionally been reserved for the federal courts. In Marbury v. Madison (1803), Chief Justice John Marshall addressed the principal question of which branch of government shall have the final say in interpreting the Constitution. The case was set against the strong political struggle between John Adams and the Federalist, who favored a strong central government, and his successor Thomas Jefferson and the Republicans, who favored a smaller federal government. The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed Justice of the Peace in the District of Columbia by President John Adams, but the commission was not delivered by the newly elected president Thomas Jefferson. Marbury sued to force the new Secretary of State, James Madison, to deliver the appointment. The court found that Madison’s refusal to hand over the commission was both illegal and correctable, but that the court would not order Madison via writ of mandamus to hand over the commission, holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was unconstitutional. Namely, it extended the Court’s original jurisdiction beyond what was set forth in Article III of the Constitution. Significantly, the court held, according to Article III of the Constitution, that if the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority, and the duty, to declare the statute unconstitutional and to refuse to enforce it. Here the court determined that the purpose of a written constitution is to establish a fundamental and paramount law, therefore, it follows that any act of the legislature objectionable to the Constitution must be void. Further, the court held, “It is emphatically the province and duty of the judicial department to say what the law is.” The court must make the determination whether, in a particular case, an act of Congress is in conflict with the Constitution, not the legislature. This concept of judicial review allows for the Constitution to be binding, enforceable law.
In McCulloch v. Maryland (1819), the court deals with whether Congress has the power to establish a national bank. The court held that Congress has implied powers derived from those listed in Article I, section 8 of the Constitution. Namely, the Necessary and Proper Clause gave Congress power to establish a national bank. Therefore, the court established that Congress has implied powers for implementing the Constitution’s express powers and state action may not impede valid Constitutional exercises of power by the federal government. In his decision, Chief Justice Marshall noted an important difference between the Constitution and the Articles of Confederation. The Articles said that the states retained all powers not “expressly” given to the federal government. The Tenth Amendment, Marshall noted, did not include the word “expressly.” This was further evidence, he argued, that the Constitution did not limit Congress to doing only those things specifically listed in Article I. The Court’s decision asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments.
Arizona’s Prop 122 is fundamentally unconstitutional after Marbury and McCulloch. Pursuant to the supremacy clause, Arizona is not the final decision maker on whether a federal law is constitutional or not, the Supreme Court is. If a constitution allowed states to each have their own interpretation, such constitution would not be binding or enforceable, but rather would be a loose guideline.
In Martin v. Hunter’s Lessee (1816), the Supreme Court of the United States ruled that it had the power to review decisions of state courts. In Martin, a dispute over a parcel of land arose when a Virginia citizen claimed the land was granted to him after it was confiscated from British subjects, while a British subject claimed the confiscation was ineffectual under treaties between the United States and England. The case passed through the Virginia courts, and the U.S. Supreme Court reviewed the state court decision. The Supreme Court remanded the case to the Virginia Court of Appeals with an instruction to enter verdict for the British subject; but, the Virginia court opted not to follow the instruction, claiming that Section 25 of the Judiciary Act of 1789 (which authorized Supreme Court appellate jurisdiction over certain enumerated state cases by writ of error). The Supreme court held that it had appellate jurisdiction over cases pending in state courts, and over determining the constitutionality of a decision by a state’s highest court. The court reasoned that the Virginian and federal governments were not coequal sovereigns, and that the Supreme Court could override a state court decision in interest of providing a uniform system of law, as constitutionally mandated under the Supremacy Clause.
Applying the standard of Martin, the Prop. 122 amendment to the state’s constitution—allowing Arizona to determine for itself which federal laws it deems constitutional and therefore will enforce —seems unconstitutional. According to Martin, a state sovereign is not on equal footing with the federal sovereign; therefore, it seems improper that Arizona enact a law stating that it may determine the constitutionality of a law passed by Congress. Further, Arizona’s unilateral selecting of which federal laws it will conform with destroys the very notion of a uniform, nation-wide system of law, which Martin sought to maintain in conformity with the Supremacy Clause. The very purpose of a federal enactment is undermined if any state can simply choose not to follow its mandates.
The Anti-Commandeering Doctrine
Prop 122, as discussed above, appears to be an attempt by the State to support the notion of state’s rights and as a check on the limits of federal power, but is problematic because it grants the state power to determine what is constitutional. In stating that the state need not comply with unconstitutional federal orders, the proposition seems to parallel New York v. United States (1992) and Printz v. United States (1997). In New York the court held that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.” Printz extended this doctrine to state officials and subdivisions, specifically municipal governments. In Reno v. Condon (2000), however, the court held that the federal government can still pass prohibitions upon the states, specifically upholding a statute prohibiting states from selling driver’s license information. Together these three cases make up the basic anti-commandeering doctrine framework which holds that states and state officials cannot be compelled to participate in federal programs, but the federal government may pass prohibitions upon the states. Prop 122, however, allows the state to make determine when a program is unconstitutional, which is problematic.
Prop 122 attempts to allow the state to declare any federal action unconstitutional, which includes acts that are outside the scope of the anti-commandeering doctrine. The anti-commandeering doctrine prevents the federal government from compelling state action, but it does not prevent the federal government from passing laws that restrict state action. For example, a federal law prohibiting resale of seized weapons would not compel state action, but rather it would restrict action, and such law would be constitutional insofar as the anti-commandeering doctrine is concerned. This is because in Reno the Supreme Court held that federal laws prohibiting states from selling driver’s license information were constitutional; In other words, the federal government can pass prohibitions upon the state. Prop 122 would theoretically allow the state to declare such an action unconstitutional, even though it is likely constitutional.
In 2015, the Arizona Senate passed SB 1330 as an early attempt to invoke Prop 122; the Bill was held in the Rules [Constitutionality] Committee of the Arizona House. The Bill would have prevented state compliance with any federal law or rule regarding the restrictions on firearms. The Bill language itself cites Printz and James Madison’s Federalist #46 (legislative finding A4 and A5) as justification for its constitutionality. The issue with SB1330’s application of Prop 122, with regard to Printz and the anti-commandeering doctrine, is that federal gun laws often do not require the states to do anything; such laws are often prohibitions on the people, not a compulsion upon the state and thus do not fall under the anti-commandeering doctrine. The state’s attempt to justify Prop 122 application under Printz is largely inapplicable due to the lack of federal compulsion upon the states or subdivisions of the state, and the findings provide no justification allowing the state legislature to determine what federal actions constitutional and what is not. These reasons are perhaps the reason why SB1330 was held in the Rules Committee—the legislative findings do not justify the constitutionality.
Subsection C of prop 122 states that if a federal program is deemed unconstitutional, then the state and all subdivisions are prohibited from using personnel and financial resources to enforce, administer, or cooperate. Nothing in Prop 122 says that the state will not cooperate with federal prohibitions, as are allowed under Reno, but rather that the state will not use financial or personnel resources to carry out certain federal actions. This notion of only withholding personnel and resources differs from the 2012 attempt that would effectively have allowed the state to veto a federal action and simply not comply with it. Withholding state resources seems consistent with New York and Printz; if a federal program requires the state to use personnel or financial resources, then it likely is unconstitutional under modern anti-commandeering doctrines; but the state isn’t permitted to determine constitutionality. In other words, if the state thinks a federal action is unconstitutional, the state should sue for commandeering; the state cannot simply declare a federal action unconstitutional.
In addition to being unconstitutional, AZ Prop 122 holds no true purpose because there are other protections in place. In National Federation of Independent Businesses v. Sebelius (2012), several states challenged the constitutionality of the Affordable Care Act, claiming the Individual Mandate exceeded Congress’ enumerated powers under the Commerce Clause and the Medicaid expansions were unconstitutionally coercive. The court held that the Individual Mandate was an invalid exercise of congressional authority under the Commerce Clause; however, it is a constitutional act under the Constitution’s Taxing and Spending Clause. The court reasoned that congress does not have the power to regulate commerce by compelling participation, only existing commerce, but the mandate is acceptable under the Taxing and Spending Clause because the penalty is in place as a tax and not a punishment for unlawful acts. The court further held that the Medicaid expansion was unconstitutionally coercive. The court reasoned congress cannot pressure the states to comply by threatening to withhold all federal Medicaid funding. Thus, it has already been established that the federal government cannot decree how the state uses its resources. In addition, if AZ accepts federal funds under certain agreements, Prop 122 would not be applied; the state already has the choice not to accept federal funding if the condition is believed to be unconstitutional.
As seen in the Sebelius case, there are constitutional ways of challenging a federal law. Prop 122, ironically referred to as the Check and Balance act, authorizes AZ state to pass its own laws rejecting the implementation of federal law using its state resources. But the proposition alone would shake the core of the Checks and Balances system in place between the separate branches of government. “This proposed amendment to the Arizona Constitution would give these legislators more power. If adopted by the voters, Arizona could pass a bill that would forbid the State from expending personnel and financial resources on any federal action that they do not agree with, including many important protections.” In addition, the U.S. Constitution, Article VI, Clause 2 (Supremacy Clause) notes that states are bound by federal law; when there is conflict between states and federal government, the federal government is to prevail. If the states are concerned with the federal government enacting unconstitutional law, it is again ironic that Prop 122 goes directly against the U.S. Constitution. States cannot affirmatively violate federal prohibitions, and also cannot interfere with or obstruct federal operations undertaken to implement federal enactments.
Similar Propositions by Other States
Arizona is not the only state that sought to exercise state sovereignty through ballot measures and regulations. Several states have proposed and/or passed legislation to oppose, what they believe to be, the federal government “overstepping its boundaries.” Though these measures may differ in their content and the federal laws they proposed to curtail, they are all similar in the fact that they seek to assert state power over the laws and regulations of the federal government.
Legislators in Montana were unhappy with the federal regulation of firearms. In 2009, the state passed the Firearms Freedom Act in order to declare federal gun regulations unconstitutional and to prevent the federal government from further regulating the manufacture and distribution of firearms. Specifically the bill declared all firearms manufactured in the state of Montana after October 1, 2009, and which remain in the state, exempt from federal regulation. The bill would apply to almost all firearms (semi-automatic weapons, manual weapons, and those than need more than one person to handle) and would also apply to ammunition. Furthermore the bill would do away with federal background checks and licensing regulations within the state of Montana.
The Federal Bureau of Alcohol Tobacco and Firearms issued open letters to the state legislature reminding the state that the regulation of firearms falls within federal power. The Bureau invoked both the Supremacy Clause and the Interstate Commerce Clause to justify their response and argued that because the Montana law conflicts with federal law, the federal law supersedes state law and all federal regulations continue to apply. Additionally, the Bureau asserted power over interstate commerce as a constitutionally enumerated right and argued that the passage of the Montana law would nationally disrupt firearms dealing. The issue was taken to court and in 2013, the bill was found to be unconstitutional by the 9th Circuit Court of Appeals for violating the Interstate Commerce Clause.
In 2014, New Hampshire passed HB 1533 which declared the NSA unconstitutional. The bill was entitled the Anti-Spying bill and it banned the federal government from searching information contained in portable electronic devices. The bill further states that any information obtained in violation of the law is banned from being used in any sort of legal proceeding. The provisions of the bill conflict with the role of the NSA, and as a federal program the actions of the NSA should prevail over those of the states.
Though states are permitted to sue regarding the harmful acts of federal programs, they are not permitted to self-declare the programs unconstitutional and pass legislation to enforce that rationale. When a state commences a lawsuit against the government it still allows a judicial review over the case and it acknowledges the supremacy of the federal courts in determining constitutionality. By passing state legislation to declare acts of the federal government unconstitutional, the state action is in violation of the Supremacy Clause.
Finally, in 2014, the Texas legislature proposed a bill entitled The Texas Balance of Powers Act, which seeks to nullify all federally unconstitutional bills. Specifically the bill denies power for the federal government to take any legislative, executive, or judicial action that violates the constitution, specifically including actions that disregard state sovereignty as established by the constitution. This bill introduces an element of state judicial review of federal laws, a version of vertical judicial review that would heavily conflict with the federal power of judicial review, established in Marbury v. Madison. Furthermore, the bill flies in the face of the Supremacy Clause as its goal is to unilaterally declare federal laws unconstitutional and ban its citizens from complying with those laws.
The bill is still in its introductory phase and as of April 21, 2015, has passed its select committee (by a vote of 5 to 1). It has been placed on the Committee of the Whole calendar and is awaiting a vote in the house. For the aforementioned reasons, it is highly likely that if this bill were to pass it would be struck down as unconstitutional.
Bills and state action that are based on a principle of nullification—unilaterally asserting power to declare federal laws unconstitutional—will most often be struck down and held unconstitutional themselves as they fail to acknowledge the supremacy of federal law. Arizona’s Proposition 122 is similar to the proposed legislation above in that it seeks to pass a legally binding and unchallengeable doctrine asserting power over the supreme law of the land. Based on the precedent set by the overruling of similar nullification measures, it is highly likely that Proposition 122 will also be held as unconstitutional.
Although Prop 122 might seem attractive to the voter because of its intention to promote state sovereignty, it is unconstitutional and cannot be enforced. This is evident in multiple ways. For one, after the state legislators carefully rephrased the 2012 proposal in order to get Prop 122 to pass muster, it still only passed by a slim margin. Secondly, considering the Framers’ aim and the fact that this state sovereignty notion was debated but ultimately rejected during the drafting of the Constitution, it goes to show that Prop 122 challenges the unity of the United States. Lastly, in analyzing various Federalist papers, the language of the constitution, and relevant case law, all fingers point toward the federal government as the supreme adjudicator. It has been determined the states cannot be compelled or coerced into certain activities that invade the powers granted to them, but if states are allowed to determine overall constitutionality of all federal enactments, the United States would lose the consistency the system thrives on.