THE NEW FEDERALISM AND WHAT IT MEANS FOR ARIZONANS

posted by Michael Chihak

Two U.S. Supreme Court cases with implications for Arizonans are pending decisions, and at least one more -- possibly two or three more -- cases are headed to the highest court in the land.

All are examples of Arizona's pushback of what Republican Gov. Jan Brewer, GOP Attorney General Tom Horne and Republican legislative leaders say are illegal and unwarranted federal intrusions, or shortcomings by the federal government in providing Arizona the protections that the Constitution calls for.

Now before the court are:

• A challenge to the state's school tax credit system, specifically its allowance for contributions under the credit going to religious-only schools, saying that is a violation of the First Amendment principle of separation of church and state. Supreme Court arguments were heard in November 2010.

• A challenge to the state's Clean Elections system, which gives to candidates who apply and qualify for it public funding in an amount equal to what their opponents raise privately. It also is a First Amendment case, citing the Clean Elections law as a violation of free speech. Supreme Court arguments are expected this spring.

While those are First Amendment cases, the basis for much of the legal and political activity in Arizona is aimed at interpretations of the U.S. Constitution's "supremacy clause" vs. the 10th Amendment.

The "supremacy clause is Article VI, Clause 2, which says that the Constitution and the laws of the United States "shall be the supreme law of the land." The 10th Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

One case likely to go to the Supreme Court is over Arizona's SB1070, the strict immigration control law, passed last year amid talk by state Republican leaders of their frustrations over the federal government failing to protect the state from what some called an "invasion" of illegal immigrants across the Arizona-Mexico border.

This legislation session has seen introduction of bills calling for the state to be able to nullify any federal law that legislators think intrudes on the state's sovereignty and one bill that would make it a minor felony for a federal officer to undertake enforcement of any such law.

Additionally, a legislator and Attorney General Tom Horne have said they reject a U.S. Supreme Court ruling in 2007 that upheld the U.S. Environmental Protection Agency's authority to regulate carbon dioxide and other greenhouse gases.

For Friday, Arizona Week is assembling a list of guests who can speak to the issue from both its political and legal viewpoints, along with a panel of journalists to provide commentary on the issues.