CREDIT: (AP Photo/National Portrait Gallery)
Federal law is completely optional and Idaho can opt out of any laws it doesn’t like. Or, at least, that’s what several members of the Idaho state legislature appears to believe. On Thursday, the Idaho House Resources Committee approved a bill purporting to declare all Environmental Protection Agency regulations “null and void”.
The bill, which claims that “the regulation authority of the United States environmental protection agency is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the founders and ratifiers,” is doubly unconstitutional. States do not have the unilateral authority to declare a law unconstitutional — indeed, as James Madison once warned, allowing states to nullify federal laws would “speedily put an end to the Union itself.” Moreover, the bill’s claim that environmental regulation violates the Constitution is simply untrue.
The Constitution permits Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” and this power includes the authority to delegate the details of commercial regulation to an agency, so long as Congress “clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”
The federal government’s power to regulate commerce is also quite broad. As Chief Justice John Marshall — one of the ratifiers of the Constitution — explained in the very first Supreme Court decision interpreting the scope of this power, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Congress’s power to regulate trade is “plenary,” a word meaning that it is unqualified or absolute.
So, when a factory produces goods that will be traded in a national or international marketplace, the federal government may regulate that production — and that includes regulating any emissions produced by that factory. Similarly goods are shipped from that factory to warehouses and retail stores, the federal government may regulate this aspect of commerce as well — and that includes the power to regulate any emissions from trucks, airplanes or other vehicles used to transport goods.
More recent Supreme Court decisions explain that the federal government’s authority over national commerce extends even to many activities that take place entirely within one state. Thus, for example, the federal ban on marijuana also applies to marijuana grown and used entirely within the borders of California, because increasing the production of any commodity “has a substantial effect on supply and demand in the national market for that commodity.” A similar principle would apply to any Idaho businesses that compete with companies that engage in multi-state commerce.
Moreover, if Idaho were able to exempt itself from EPA regulations, the consequences would extend well beyond the borders of Idaho. Should just one state become an island free from environmental protections, factories and other polluting industries would flock to that state — but the pollution they produce would hardly remain contained in Idaho. The framers drafted the Constitution to ensure that Congress would be able “to legislate in all cases for the general interests of the Union.” This goal would be thwarted if one state could pollute the other 49 and Congress was left with no recourse.
All of this is a long way of saying that the Idaho bill is rooted in constitutional nonsense. Idaho cannot invalidate federal laws, and it certainly cannot do so based on an idiosyncratic reading of the Constitution that would leave the rest of the nation helpless against clouds of pollution billowing across the Idaho border.