Arizona Doesn't Have to Follow Federal Laws -- Or Does It?

A sovereignty measure on Arizona's ballot this November will let voters decide whether or not the state can forgo enforcing certain federal laws like Obamacare.
by | September 16, 2014
Tombstone, Ariz., which has battled with the federal government for years over water, is a historic city known for the preservation of its frontier town from the Old West.
Tombstone, Ariz., is a historic city known for the preservation of its frontier town from the Old West. FlickrCC/Mathieu Lebreton

ELECTION 2014: This article is part of our coverage of ballot measures to watch.

The Arizona town that boasts it’s “too tough to die,” has been fighting for its life over what makes or breaks most towns in the dry and dusty West: water.

Known for its legendary duels between Wild West gunslingers, Tombstone has been battling with the federal government for several years over a 26-mile water pipeline that feeds the city from springs in the nearby Huachuca Mountains. Some of those springs are in a wilderness area protected by the U.S. Forest Service. When the city attempted to repair damage to the line following a 2011 fire in the mountains, the federal government halted the work, citing the 1964 Wilderness Act which bans anything mechanical in the forest -- even wheelbarrows.

The city eventually got an agreement to use backhoes and other equipment to make the needed repairs but is now suing the federal government for the right to make more substantial upgrades to the 130-year-old pipeline. The battle typifies what some Arizonans see as federal overreach and is part of why some lawmakers in the state put a measure on this November’s ballot that would allow the state to forgo enforcing certain federal laws.

Called Proposition 122, the measure would allow Arizona to opt out of enforcing a federal law if voters approve a referendum against the law and if lawmakers pass a bill or some other legal remedy (like a governer's executive order) is applied. Although proposition clarifies that Arizona is still subject to the United States Constitution, the proposition states that if such a measure passed, the state, counties, cities, towns and other political subdivisions of the state would be prohibited from using any personnel or financial resources to enforce, administer or cooperate with a federal action or program. Instead, the federal government would be responsible for enforcing its own law.

(FlickrCC/His Noodly Appendage)

The ballot measure could help Tombstone’s case, but the proposition has more far-reaching implications. Supporters have cited several other examples of what they call federally mandated unconstitutional actionsThe state’s scandal-plagued Child Protective Services agency is also a target, with Prop. 122 supporters noting that the agency’s attorneys are citing federal law in not releasing potentially damning information. “Prop 122 forces Child Protective Services to be more transparent when children are harmed,” Yes for Common Sense campaign literature says. “Bureaucrats would be forced to give up documents that could shed light on where they made mistakes and more importantly give us insight into how we can prevent children from dying in the future.”

Clint Bolick, vice president of the Goldwater Institute (which is representing Tombstone in its legal battle), said he sees this measure being applied most commonly in the area of natural resources. A “classic example” of federal overreach, he said, is when local law enforcement is called upon to boot out illegal camping in national parks in the state. “One thing states clearly should have control over is their own spending,” he said. “And this method is where we found the way to achieve the state's goals when they conflict with the federal government’s.”

But environmentalists see more dangerous applications of the measure if it passes. “We could see our legislature saying we don’t agree with provisions in the Clean Air Act, the Clean Water Act and the Endangered Species Act and we don’t want a role in implementing those,” said Sandy Bahr, director of the Sierra Club’s Arizona chapter.

Supporters say the federal government is still welcome to come in and enforce its own policy. And indeed, it has before – with unintended consequences. In 2010, the Environmental Protection Agency took over issuing greenhouse gas permits in Texas because the state environmental agency failed to  enforce the Clean Air Act. But that meant businesses seeking a greenhouse gas permit were then subjected to a new permitting process under federal management, instead of more familiar state regulations. The new protocols for companies, combined with the fact that the EPA was not equipped to deal with the volume of permitting, resulted in a more cumbersome process and a backlog of expansion projects in Texas. Earlier this year, the Texas Commission on Environmental Quality took back the permitting process from the EPA.

Jonathan Paton, a spokesman for the Yes on 122 campaign, acknowledged that the proposition won’t fit every situation. But he said if and how the state enforces federal policies should at least be an open debate and the measure creates that opportunity.

“If we opt out, would the federal regulations instead of our own state’s be worse than what we wanted? That’s a policy debate,” he said. “Or should we get financial incentives for enforcing policy? All of that should be discussed.”

As far as opposition to the measure goes, the local Sierra Club has not yet formalized a campaign against Prop. 122 but Bahr said that’s a possibility. The chapter organized an effort against a similar measure in 2012 that declared state sovereignty over the Arizona’s natural resources. That measure was rejected by voters.

Bahr said she’s not sure this time if the environmental opponents of the Prop. 122 will be as successful.

“Public lands are pretty popular in Arizona,” she said adding that the 2012 measure failed in every single county in the state. “People saw that for what it was. This one’s more cleverly worded though, so we’ll see.”