Vice President Joe Biden will not deliver his suggestions for gun violence prevention measures to the President until Tuesday. But, in a move that is as unconstitutional as it is presumptuous, lawmakers in Wyoming have already mounted their effort to block whatever legislative measures Biden might suggest. They aim to nullify any federal law that they do not like, and to create punishments for federal agents who might try to enforce new gun safety measures.

In a bill sponsored by eight representatives and two state senators, the lawmakers stipulate that “any federal law which attempts to ban a semi-automatic firearm or to limit the size of a magazine of a firearm or other limitation on firearms in this state shall be unenforceable in Wyoming.” These two measures have been among Biden’s proposals. The Wyoming bill also makes it a felony to enforce federal gun laws:

Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony. and, upon conviction, shall be subject to imprisonment for not more less than one (1) year and one (1) day or more than five (5) years, a fine of not more than two thousand dollars ($2,000.00) five thousand dollars ($5,000.00), or both[...]

Any federal law, rule, regulation or order created or effective on or after January 1, 2013

shall be unenforceable within the borders of Wyoming if the law, rule, regulation or order attempts to:
(i) Ban or restrict ownership of a semiautomatic firearm or any magazine of a firearm; or
(ii) Require any firearm, magazine or other firearm accessory to be registered in any manner.

There’s just one glaring problem with the legislators’ plan: If the federal government were to pass such measures, the bill would be unconstitutional.

The constitutional theory they are implementing is called “nullification” — where a state nullifies a federal law, in this case gun safety measures. The constitution actually stipulates that federal law “shall be the supreme law of the land.”

But the lawmakers seem to be ignoring that issue. Wyoming State Senator Larry Hicks tells the Washington Examiner that the he believes the measure is constitutional under the tenth and second amendments. His colleague, Rep. Kendell Kroeker adds that, no matter the constitutionality, “I think that its necessary when the federal government violates our rights in the Constitution we have to act.”

This isn’t the first effort by the Wyoming legislature to circumvent federal law. On the state’s ballot in November, lawmakers added a proposed constitutional amendment that would have exempted the state from Obamacare.

According to newly released emails, six members of the Wisconsin legislature told a tea party group that they backed an unconstitutional plan to arrest federal officials charged with implementing the Affordable Care Act:

Lawmakers who backed the idea of arresting federal officials who try to implement Obamacare received both praise and condemnation from their constituents, as well as a round of media inquiries, newly released emails show.

In responding, the six lawmakers generally downplayed their support for the idea even though they told the tea party-aligned Campaign for Liberty they approved of the notion.

The emails, released under the state’s open records law, also show an aide to Sen. Mary Lazich (R-New Berlin) advised her to turn down an offer to talk about Obamacare on Greta Van Susteren’s program on Fox News because of the Campaign for Liberty survey. . . . Lazich and five other lawmakers — along with three others who will be sworn in in January — told the Campaign for Liberty they backed passing a law to “nullify” the Affordable Care Act and arrest federal officials who tried to implement it. The idea, disputed by legal scholars, is based on the belief that under the 10th Amendment states can choose to ignore federal laws.

As ThinkProgress has repeatedly explained, state laws purporting to nullify federal laws — much less state laws that would subject federal officials to arrest for carrying out their official duties — are a world of unconstitutional. The Constitution expressly states that duly enacted federal laws “shall be the supreme law of the land,” regardless of whether state lawmakers disagree with those laws.

Before the Supreme Court largely upheld the Affordable Care Act against a legal challenge that had no basis “in either the text of the Constitution or Supreme Court precedent,” right-wing lawmakers tried to undermine health reform through unconstitutional state laws or ballot initiatives claiming that parts of Obamacare simply did not apply in their state. The fact that these efforts violates the Constitution’s explicit text, which provides that duly enacted federal laws “shall be the supreme law of the land” did not seem to bother them in the least.

Months after the Supreme Court turned away the spurious legal attacks on health reform, conservative Wyoming lawmakers are still pushing this unconstitutional effort to undermine it with a proposed state constitutional amendment that will be on the ballot next week. And their unconstitutional nullification amendment is unusually explicit about the direct conflict it presents with federal law & the Constitution:

No federal or state law, rule or administrative decision shall compel, directly or indirectly, any person, employer or health care provider to participate in any health care system

Ultimately, these kinds of unconstitutional attacks on a entirely valid federal law are cruelest to the conservative voters who turn out to support them. If this initiative passes, many Wyomians will be left with the entirely false impression that they no longer have to comply with a federal law. Some of them may even break the law as a result. But their legal obligations under the Affordable Care Act will not change one bit, even if the proponents of this amendment deceive them into thinking they have.

Last week, the Florida GOP launched a campaign to remove three sitting state supreme court justices who previously ruled against Gov. Rick Scott (R-FL). If this campaign succeeds, Scott will be able to appoint three of the court’s seven justices, giving the Tea Party governor control over nearly half the court.

Today, the Tea Party group Americans for Prosperity — which is chaired by GOP energy billionaire David Koch — joined this effort as well. The Koch group’s first ad attacks the three justices because they joined a 5-2 opinion blocking an unconstitutional ballot initiative seeking to nullify the Affordable Care Act:

Many states, like Ohio, gave their citizens the right to vote against [the Affordable Care Act]. But not Florida. Our own supreme court denied our right to choose for ourselves. Shouldn’t our courts protect our rights to choose?

Watch it:

First of all, the Florida Supreme Court’s decision had nothing whatsoever to do with denying people their “right to choose.” To the contrary, the court removed the unconstitutional ballot initiative after the initiative’s own defenders admitted that the ballot language accompanying this initiative was misleading. So the court’s opinion stood simply for the very banal point that voters should know what they are voting for before they cast a ballot.

More importantly, however, by praising this ballot initiative, the Koch group is also endorsing a misguided constitutional theory known as “nullification.” Because the Constitution provides that duly enacted federal laws “shall be the supreme law of the land,” states simply do not have the authority to block an Act of Congress such as the Affordable Care Act, whether through a ballot initiative or otherwise.

Although nullification was very much in vogue among nineteenth century slaveholders and Civil Rights era segregationists, it has largely been avoided for most of American history because the Constitution speaks so clearly and unambiguously that it is not allowed. Nevertheless, it has experienced a moderate renaissance among Tea Partiers after a right-wing pseudo-historian named Tom Woods published a book defending the idea. Woods also once published an article declaring the Confederacy to be “Christendom’s Last Stand.” In it, he endorsed the view that the Civil War was a battle between “atheists, socialists, communists, red republicans, jacobins on the one side and the friends of order and regulated freedom on the other.” He concludes that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

So the Koch group’s ad does not simply seek to punish three justices for placing the law before conservative ideology and turn Florida’s highest court over to the mercies of a Tea Party governor, it also endorses one of the most outlandish misreadings of the Constitution ever conceived by states’ rights advocates — many of whom later wielded it to defend the most abhorrent practices in American history. The Koch ad demonstrates that one of the most powerful and well-moneyed interest groups in the Republican coalition embraces the worst kinds of constitutional thinking, and that they are eager to seek revenge against a judge or justice who rejects their twisted view of the Constitution. If the Koch group succeeds in taking out these three justices, if will send a clear message to every elected judge in the country that they follow the Constitution at their own peril.

The words “tea party” are not normally associated with moderation and restraint, but a group known as the Asheville Tea Party is extreme even by tea party standards. The Asheville Tea Party published a lengthy rant comparing President Obama to Hitler (sample quote: “Hitler took control of the banks….Obama took control of the banks. Hitler installed Socialized medicine….Obama’s Administration passed Socialized medicine.”). They devote an entire section of their website to “Sharia, The Threat.” They offer a list of resources focused on the “communist take over of America” (sample article title: “How Many Members Of The U.S. Congress Are Self-Declared Socialists?”). And they are hosting an event tomorrow keynoted by a sitting North Carolina Supreme Court justice:

Justice Newby is a major benefactor of wealthy conservatives’ largess. A super PAC formed earlier this year to raise unlimited sums of money to keep Newby on the bench, and another group led by North Carolina retail mogul Art Pope already dropped $72,000 to support Newby’s reelection bid.

Nevertheless, Newby’s decision to keynote an Asheville Tea Party event is surprising given the Asheville Tea Party’s unusual understanding of the Constitution. In a statement released shortly after the U.S. Supreme Court upheld the Affordable Care Act, the Asheville Tea Party declared that “We need new representatives in Raleigh dedicated to states rights and nullification who will stand up and prevent onerous federal mandates thurst upon us.” Nullification is an unconstitutional doctrine which claims that states can simply decree that federal laws will no longer apply within their borders. It was very much in vogue during slaveholder efforts to retain power in the 1830s and segregationist efforts to retain power in the 1950s and 60s, but it is explicitly rejected by the Constitution — which provides that duly enacted federal laws “shall be the supreme law of the land.”

Today, Texas Republican primary voters selected Ted Cruz as their candidate to replace retiring U.S. Sen. Kay Bailey Hutchison (R-TX). Cruz, a former Solicitor General of Texas and law clerk to Chief Justice William Rehnquist, is among the nation’s most skilled Supreme Court advocates. Yet his considerable intellect is rivaled by his very poor judgment. Here are just five of the most revealing windows into Cruz’ Tea Party worldview:

1) Ted Cruz Believes George Soros Leads A United Nations Conspiracy To Eliminate Golf: In 1992, President George H.W. Bush joined the leaders of 177 other nations in endorsing a non-binding UN document known as Agenda 21. This twenty year-old document largely speaks at a very high level of generality about reducing poverty and building sustainable living environments. Nevertheless, Cruz published an article on his campaign website claiming that this non-binding document is actually a nefarious plot to “abolish ‘unsustainable’ environments, including golf courses, grazing pastures, and paved roads.” To top it off, Cruz lays the blame for this global anti-golf conspiracy at the feet of a well-known Tea Party boogieman — “The originator of this grand scheme is George Soros.”

2) Ted Cruz Wants To Gut Social Security: In an interview with the Texas Tribune Cruz labeled Social Security a “ponzi scheme” and outlined a three-step plan to gut this essential program. Cruz would raise the Social Security retirement age, cut future benefits, and implement a George W. Bush-style plan to privatize much of the program. In other words, in addition to forcing them to work longer for fewer benefits, Cruz would place retirees at the mercy of a fickle stock market. Had Social Security been privatized during the career of a worker who retired near the end of the Bush Administration, that worker would have retired with less money in their privatized account than they would have if they’d simply kept their money between their mattress and box spring.

3) Ted Cruz Wants To Party Like It’s 1829: The Constitution provides that Acts of Congress “shall be the supreme law of the land,” and thus cannot be nullified by rogue state lawmakers. Cruz, however, co-authored an unconstitutional proposal claiming two or more states could simply ignore the Constitution’s command and nullify the Affordable Care Act so long as they work together. Although the Constitution does permit states to join in “interstate compacts” that have the force of law, under the Constitution such compacts require the consent of Congress and can be vetoed by the President. Cruz falsely claimed that states do not need to meet these Constitutional requirements to undermine laws they don’t like.

4) Ted Cruz Is An Islamophobe: At a campaign event earlier this month, Cruz touted another of the Tea Party’s favorite conspiracy theories, claiming that “Sharia law is an enormous problem” in this country. Although it is common for far right politicians to claim that American law is somehow being replaced with Islamic law, these claims have absolutely no basis in reality. Few American courts have ever even mentioned Sharia or Islamic law, and those that have generally only do so in contracts or similar cases where a party before the court agreed to be bound by Sharia law.

5) Ted Cruz Campaigned On How He Helped Texas Kill A Mexican: Cruz’s very first campaign ad encouraged GOP primary voters to support him because he helped make it easier for Texas to kill an “illegal alien.” According to the ad, “Cruz fought all the way to the Supreme Court” after “the UN and World Court overruled a Texas jury’s verdict to execute an illegal alien.” In reality, the case Cruz won had nothing to do with whether Texas had the authority to kill this man. Rather, it concerned whether Texas could defy a treaty requiring it to inform foreign nationals who are arrested of their right “to request assistance from the consul of his own state.” Even North Korea honored this treaty that Cruz fought to undermine.

Not to be outdone by an Oklahoma lawmaker’s sore loser proposal to nullify the Affordable Care Act, a right-wing millionaire in Arizona filed a petition seeking to set up several unconstitutional processes to nullify many more federal laws:

[I]t would allow Arizonans “to reject any federal action that they determine violates the United States Constitution.”

That could occur through a vote of the state House and Senate with consent of the governor.

But that also could occur through a popular vote on a ballot measure, effectively allowing voters to decide which federal laws they feel infringe on Arizona’s rights as a sovereign state.

Organizer Jack Biltis said he turned in more than 320,000 signatures. The next step will be for the Secretary of State to determine, after screening the petitions, if there are at least 259,213 valid names on the forms to allow the measure to go on the ballot.

Biltis, who said he has spent more than $1.2 million on the campaign so far, said it is time for Arizona to step up and reclaim its constitutional rights.

Not surprisingly, the initiative’s millionaire backer lists the Affordable Care Act as the “flagship” example of a law he would like to see nullified. The fact that his initiative violates the U.S. Constitution’s express language — which provides that federal law “shall be the supreme law of the land” — does not semm to bother Biltis in the least.

It should bother Arizona voters, however, even those who object to ensuring that health care is accessible and affordable for everyone. If Biltis’ initiative should pass, it will mean that hundreds of thousands of Arizonans will be misled into believing the state has a power it cannot constitutionally exercise. Worse, should Arizona actually attempt to nullify a federal law, unwitting Arizonans could be tricked into beleiving that they do not have to follow the law — and could find themselves on the wrong end of a federal trial when they learn that they were mistaken.

If Biltis does not like the Affordable Care Act then he can vote for federal lawmakers who support repealing it. Bankrolling an unconstitutional ballot initiative will do little more than confuse voters, and potentially lead them to violate the law without even recognizing their actions are illegal.

In 2010, conservatives tried to block the Affordable Care Act in Congress. They lost, and President Obama signed the landmark legislation into law.

Rather than respect the legitimate act of a democratically elected legislature, health reform’s opponents responded by immediately asking the courts to invalidate what the American people’s representatives brought into being. They lost again — although by a depressingly narrow margin considering how absurd their legal arguments were.

Now that that attempt to subvert democracy has failed, an Oklahoma lawmaker relaunched an even more constitutionally challenged attack on the law:

State Rep. Mike Ritze said Tuesday he plans to reintroduce a bill to “nullify” the individual mandate in the 2010 federal health care legislation in Oklahoma.

“I disagree with the Supreme Court’s ruling and believe that state governments were intended to serve as a check on the federal government,” said Ritze, R-Broken Arrow. “The Patient Protection and Affordable Care Act, which is better known as ObamaCare, is an example of federal overreach and my legislation will authorize the state to resist it and ban the enforcement of it.”

Of course, Ritze’s bill violates the express language of the Constitutional, which states that Acts of Congress “shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.” Yet, while his tactic is clearly unconstitutional, it is not unprecedented. In the 1950s, when Jim Crow lawmakers objected to the Supreme Court’s decision in Brown v. Board of Education, they too claimed the power to simply decree that the Court was wrong and act like they can do whatever they choose.

This November, voters won’t just choose the next President of the United States, they will vote on referendums and state constitutional amendments that may determine the course of public policy in their states in a number of subject areas. Currently, 127 questions are certified for spots on 33 statewide ballots and 104 of them will be voted on in November. Here are ten of the most important policies that will be voted on in November:

1. Health Care in Alabama, Florida, Montana, Wyoming: Voters in four states, Alabama, Florida, Montana, and Wyoming will vote on whether to alter their state constitutions to essentially nullify the Affordable Care Act’s requirement to carry insurance or pay slightly more income taxes. Assuming the Supreme Court upholds the Constitution in the pending health care case, these amendments would have no lawful effect because a state cannot constitutionally block a federal law.

2. State Land Seizure in Arizona: Speaking of the unconstitutionality of nullification, Arizona’s voters will vote on an amendment that would declare state sovereignty “over the air, water, public lands, wildlife and other natural resources” within Arizona’s borders. The question, which was referred by the state legislature, is widely viewed as an unconstitutional effort to seize federal lands.

3. Abortion in Florida, Montana: Voters in Florida and Montana will decide whether they want to enshrine abortion restrictions in their state constitutions. Florida voters will vote on an amendment to prohibit the use of public funds for abortions except as required by federal law and to save the mother’s life, and stipulate that Florida’s constitution does not include broader rights to abortion than the US Constitution. Montana voters will vote on an amendment that would require parental notification prior to a minor’s abortion absent judicial waiver.

4. Marriage Equality in Maine, Maryland, Washington, Minnesota: Four states, Maine, Maryland, Washington, and Minnesota, have questions on their ballot that could decide whether gay couples enjoy their constitutional right to marry in those states. While voters in Maryland and Washington are asked to ratify state marriage equality laws, Minnesota voters will decide whether marriage should be defined as between one man and one woman in the state constitution. Additionally, Maine voters will have the opportunity to reverse an anti-gay ballot initiative from 2009.

5. Race in Oklahoma, Alabama: Oklahoma and Alabama both have questions on their November ballots concerning race. Oklahomans will vote on whether to ban affirmative action based on race or sex. Alabamans will decide whether racially charged language, referencing segregation in schools, should be removed from the state constitution. Voters defeated a similar measure in 2004 by .2%.

6. Capital Punishment in California: Voters in California will get a chance to end the death penalty in California. If the initiative succeeds, the 724 inmates on death row will have their sentences changed to life in prison without possibility of parole, and California will join the 17 states that have already halted the use of the death penalty. Given recent revelations about the serious problems inherent in utilizing the death penalty, including the risk of executing innocents, this initiative should receive special attention.

7. Guns in Louisiana: In Louisiana, voters will decide whether to alter the state constitution by adding the rights to acquire, transport, carry, transfer, and use firearms in addition to the existing right to keep and bear them. If the amendment is approved, it could be interpreted to gut current gun restrictions in Louisiana, including laws that ban guns on college campuses and in bars.

8. Immigration in Maryland: Maryland voters will decide whether to overturn legislation guaranteeing in-state tuition to undocumented immigrants, and Montana voters will decide the fate of an amendment that would require proof of citizenship in order to receive certain services, including a state permit or license and services for crime victims.

9. Voter IDs in Minnesota: Minnesota voters will face a question concerning voter IDs. If accepted by voters, the amendment would require all voters to show photo ID. Similar requirements in other states have been criticized, particularly for their disparate affects on minority voters and low-income voters. Elderly voters may also be uniquely burdened by photo ID requirements.

10. Religious Funding in Florida: Florida voters will decide with to repeal the “Blaine Amendment” which bans the use of public money on religious organizations. Opponents believe passage of the amendment would “virtually require taxpayer funding of religious activities.”

–Alex Brown

Shortly after President Obama took office, his opponents began combing through constitutional history looking for discredited ideas they could revive to block progressive advances. Many embraced tentherism, the belief that everything from Social Security to Medicare to national child labor laws violates the Constitution. Two conservative federal judges recently took this even further, suggesting that all labor, business or Wall Street regulation should be treated as if it were just as constitutionally suspect as Jim Crow or government-enforced speech codes. Numerous lawmakers, including Govs. Rick Perry (R-TX), Bob McDonnell (R-VA) and Bobby Jindal (R-LA) embrace nullification, the unconstitutional idea that states can simply invalidate federal laws that they don’t want to follow. And, conservative orthodoxy now proudly embraces the ridiculous idea that the Affordable Care Act is unconstitutional.

Missouri state state Sen. Brian Nieves (R) puts most of these efforts to shame, however. In a rambling, somewhat incoherent proposed amendment to his state constitution, Nieves combines parts of the most unconstitutional tactics revived in the last three years, and mixes them in with a fundamental misunderstanding of conservative legal theory. As the amendment’s summary explains, Nieves proposal provides that:

The state also shall not recognize, enforce, or act in furtherance of any federal actions that: restrict the right to bear arms; legalize or fund abortions, or the destruction of any embryo from the zygote stage; require the sale or trade of carbon credits or impose a tax on the release of carbon emissions; involve certain health care issues; mandate the recognition of same sex marriage or civil unions; increase the punishment for a crime based on perpetrator’s thoughts or designate a crime as a hate crime; interpret the establishment clause as creating a wall of separation between church and state; or restrict the right of parents or guardians to home school or enroll their children in a private or parochial school or restrict school curriculum.

The state is also required to interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. Amendments to the U.S. Constitution shall be interpreted based on their language and the intent of the congressional sponsor and co-sponsors of the amendment.

Much of this proposal is utter gobbledygook. It’s not at all clear, for example, what it means for Missouri to “recognize” a federal law regulating emissions or punishing hate crimes more severely than others. So long as Nieves’ proposed amendment isn’t read to suggest that Missouri can somehow prevent the federal government from enforcing its own laws — something that would be clearly unconstitutional — much of the amendment’s text would actually do nothing at all.

Parts of it, however, call for outright defiance of the Supreme Court and other binding judicial decisions. The amendment defines a “federal action” to include any federal “judicial ruling.” So Nieves’ amendment is nothing less than an attempt to declare Roe v. Wade inapplicable to Missouri, in addition to any future decision ensuring marriage equality or any current decision enforcing the Constitution’s guarantee of church/state separation. Southern states tried to do the same thing to Brown v. Board of Education in the 1950s. It wasn’t constitutional then and it remains unconstitutional today.

The most bizarre part of Nieves’ amendment, however, is its declaration that the Constitution must be interpreted based on the “original intent” of its signers. Leading conservative jurists, such as Robert Bork and Antonin Scalia, abandoned this method of interpretation decades ago, and for good reason. The framers themselves rejected the idea that the Constitution should be interpreted according to their own subjective intentions, so Nieves’ amendment actually creates a paradox. Judges will be required to rely only on the framers’ original intent, but the framers’ original intent was that judges should not rely on their original intent.

Ultimately, Nieves’ amendment simply shows the unseriousness that far too many conservatives bring to the Constitution. His amendment is useless at some points, wildly unconstitutional at others, and seems designed to make judges’ heads spin as they try to resolve the fact that the amendment contracts itself.