OKLAHOMA CITY – Republican Oklahoma legislators are challenging the federal government’s reach on multiple issues this year.
For example, two measures that declare Oklahoma’s sovereignty by asserting rights incorporated into the Tenth Amendment to the U.S. Constitution passed the Republican-dominated Oklahoma House of Representatives by wide margins.
House Bill 1236 decrees that the Oklahoma Legislature “may review any executive order issued by the President of the United States, federal agency rule or federal congressional action to determine the constitutionality of such action.”
Upon a recommendation from the Legislature, the state Attorney General “shall review such action by the federal government to determine the constitutionality of the action and whether the state should seek an exemption from the application of the action or seek to have the action declared unconstitutional.”
The bill further mandates that, “Notwithstanding any other provision of law, the state, county, political sub-division or any other publicly funded organization shall not implement any action that restricts a person’s rights or that the Office of the Attorney General or the Legislature by a majority vote determines to be unconstitutional ... and which relates to:
• pandemics or other health emergencies;
• regulation of natural resources, including oil and natural gas;
• regulation of the agriculture industry;
• the use of land;
• regulation of the financial sector as it relates to environmental, social or governance standards;
• any gun restrictions in contravention of the Second Amendment;
• the regulation of education;
• regulation of interscholastic, intramural or other extracurricular sports sponsored by an institution of higher education, a school district or a charter school; or
• any other powers reserved by the State of Oklahoma or the people of Oklahoma.
The principal authors of HB 1236 are House Speaker Charles McCall, R-Atoka, and Rep. Mark McBride, R-Moore. It breezed through the House on a party-line vote of 79-18 and was transmitted to the GOP-controlled state Senate.
“It has become increasingly evident that the line between states’ rights and federal powers is not be- ing respected,” McBride said. “Due to this disregard for the constitutional separation of powers, Oklahoma must have the ability to protect itself from federal government encroachments. House Bill 1236 gives us those protections.”
HB 1236 LEGALITY IS QUESTIONABLE
HB 1236, which would allow the GOP-controlled Oklahoma Legislature to declare federal laws and Presidential executive orders unconstitutional, is itself constitutionally dubious.
As an illustration, if states such as Alabama, Georgia and Mississippi had the constitutional authority to ignore the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Blacks in the United States would still be drinking from segregated water fountains and paying poll taxes.
“I can’t support the blatantly unconstitutional concept of this legislative body determining the constitutionality of congressional actions. That’s why we have a judiciary,” state Rep. Andy Fugate, D-Del City, said in a statement issued after passage of HB 1236.
“It’s our job to ask Oklahoma’s Attorney General to challenge laws and federal actions we think are unconstitutional,” Fugate continued. “But we can already do that today. In fact, we don’t even need the AG. We successfully challenged the constitutionality of the Governor writing new gaming laws.
“Even if the Legislature had the constitutional authority to declare something unconstitutional, why only require a simple majority for something so important? It takes the Legislature 68 votes to do something as trivial as making a law take effect early. Why is this worthless to the people of Oklahoma?”
HB 1236 “sets up a challenge with the courts,” Fugate said. “Besides making a lot of attorneys a ton of money, what will happen when a court overrules the Legislature on an issue of constitutionality? Will the Legislature then reconvene to overrule the court’s ruling?”
In House Resolution 1005, the House “asserts sovereignty under the Tenth Amendment to the Constitution of the United States overall powers not otherwise enumerated and delegated to the federal government by the Constitution of the United States.”
The Tenth Amendment “specifically provides that, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re-served to the States respectively, or to the people’,” HR 1005 relates.
That amendment “limits the scope of federal power and prescribes that the federal government was created by the states specifically to be an agent of the states, rather than the states being agents of the federal government,” HR 1005 declares.
“[M]any federal mandates are in direct violation of the Tenth Amendment ... and infringe upon both the reserved powers of the State of Oklahoma and the reserved powers of the people,” the resolution asserts.
HR 1005 was authored by Rep. Jay Steagall, R-Yukon, and was endorsed in the House by 79 Republicans and one Democrat, and was opposed by 14 Democrats.
The resolution – which is not a law but instead is an expression of sentiment – is to be distributed to President Joe Biden; U.S. Senate President Pro Tempore Patrick Leahy, D-Vermont; U.S. House Speaker Nancy Pelosi, D-California; and to Oklaho- ma’s five U.S. Representatives and two U.S. Senators, all of whom are Republicans.
OTHER MEASURES ALSO CHALLENGE FEDERAL POWERS
Senate Bill 18 would declare that any federal, state, county or municipal measure that called for confiscation of guns or ammunition “shall be considered an infringement on the rights of citizens to keep and bear arms as guaranteed” by the federal and state Constitutions. That bill was introduced by Sen. Micheal Bergstrom, R-Adair.
HB 1236 is not the only bill pending in the Legislature that poses a prospective court challenge.
Senate Bill 383 by Sen. Rob Standridge, R-Norman, would enable social media users to sue for damages against any social media website that censors a user’s political or religious speech. That measure could be contested on First Amendment grounds (e.g., for spreading blatant lies or inciting violence), as a potential violation of the property rights of the person who sponsors the social media site, and potentially a violation of Section 230 (the Communications Decency Act) of the federal Telecommunications Act of 1996.
House Bill 1102 would make performing an abortion not deemed medically necessary to preserve the life or prevent irreversible impairment of a major bodily function of the woman, grounds for a physician to have his/her medical license suspended or revoked. Authors of that measure are Republican Rep. Jim Olsen, R-Roland, and Republican Sen. Julie Daniels, R-Bartlesville.
Senate Bill 723 by Sen. Nathan Dahm, R-Broken Arrow, and House Bill 2441 by Rep. Todd Russ, R-Cordell, would ban abortions after detection of a heartbeat in the fetus. Senate Joint Resolution 17 by Sen. David Bullard, R-Durant, declares that life begins at conception.
The last four measures would contravene the U.S. Supreme Court’s ruling in Roe v. Wade in 1973 that legalized abortion.