Texans like to pride ourselves on our fiercely independent nature, but one veteran Republican state legislator is trying to turn that independent streak into an unconstitutional law. State Rep. Dan Flynn (R-Van) has filed a bill to allow Texas’ state house speaker and lieutenant governor to have the power to “suspend any federal law within Texas’s borders.”
As ThinkProgress summarized, Flynn’s bill lays out the following structure for the legislature to review federal laws:
- The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.
Under Flynn’s proposal, the state house speaker and lieutenant governor could create a committee stacked with loyal right-wing supporters, and use that to choose which federal laws they want the state to follow. In a state where Dan Patrick was just elected lieutenant governor, the idea is a truly terrifying prospect. Patrick is staunchly anti-immigrant and anti-choice, and if he had the power to void the federal laws that protect the rights of women and minorities, Texans could face a bleak future indeed.
Fortunately Flynn’s bill has one major problem. It’s blatantly unconstitutional.
Flynn’s bill is based on a principle called nullification, which posits that states have the right to decide which federal laws are applicable within their borders–nullifying any laws they don’t wish to follow. This notion is explicitly prohibited in the United States Constitution, which declares that federal laws “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.” The Constitution makes it clear that federal laws are “supreme” over state law, and that states do not have the right to invalidate them. The doctrine of nullification and states’ rights contributed directly to southern states’ decision to secede from the Union, and the start of the U.S. Civil War.
Supporters of nullification argue that because they’re declaring nullified laws unconstitutional, not simply invalid, nullification is permitted. However, the Constitution already provides an avenue to challenge laws that are unconstitutional–the judicial system. This is something that Texas Republicans are quite familiar with, given the number of lawsuits they’ve already filed against the Affordable Care Act, Environmental Protection Agency, and others. Nonetheless, Flynn is moving forward with his effort to join the ranks of Texans sticking it to the federal government by attempting to legalize this unconstitutional practice.
Interestingly enough, one of the other bills Flynn submitted for early filing this session was “a law requiring students take a semester on the U.S. Constitution prior to graduation from high school.” If only Dan Flynn himself had had access to one of those courses when he was in high school, perhaps Texans would not be facing the possibility of an overtly unconstitutional practice becoming codified into state law.