Updated: Jul 21
If the state capital of Idaho ignores state and federal law, it could cost the city millions in revenues. That’s the message state lawmakers are sending with the introduction of two bills this legislative session.
Senate Bill 1006 would add a new chapter to the Idaho Code to provide for enforcement of federal immigration law. If cities are found in violation, they could be denied sales tax distribution funds.
House Bill 2 calls for the withholding of sales and use tax revenues from any local government that issues proclamations, or takes similar action, to defy state law and refuse to investigate or enforce Idaho’s abortion statutes.
At the moment, only one city in Idaho may meet the definitions laid out in SB 1006 and HB 2 – the city of Boise. In July of 2022, the Boise City Council passed a resolution that limits the use of city funds to investigate abortions and enforce Idaho’s abortion law.
In 2017, the Boise City Council – while not proclaiming itself a sanctuary city – passed a resolution proclaiming itself a “welcoming city” on the topic of immigration. In 2019, Boise received “welcoming city” status from what the Idaho Statesman calls “a national nonprofit that sets guidelines for cities aiming to be more inclusive to immigrants and other residents.”
The issue of local enforcement of state and federal laws has become a hot topic over the past five years, not only with the sanctuary city movement but also the overturning of Roe vs. Wade last summer.
At question is whether municipalities are free to ignore or refuse to cooperate with laws passed at the state or federal level.
“ (2)… Whenever in the opinion of the governor any peace officer of this state refuses to offer assistance when requested to do so, or refuses to perform any duty enjoined upon him by the penal statutes of this state, the governor shall direct the attorney general to commence action under chapter 41, title 19, Idaho Code, to remove such officer from office.
(3) When in the judgment of the governor the penal laws of this state are not being enforced as written, in any county, or counties, in this state, he may direct the director of the Idaho state police to act independently of the sheriff and prosecuting attorney in such county, or counties, to execute and enforce such penal laws. In such an instance, the attorney general shall exclusively exercise all duties, rights and responsibilities of the prosecuting attorney.”
Boise’s tax revenues could take a big hit if the bills are passed. Sales tax revenues make up about $24 million of the city’s yearly budget – its third largest revenue source.
When asked about the Boise City Council’s actions, Governor Brad Little said “as elected officials we must uphold the law."
There is a difference, however, in how a city enforces state laws and how a state enforces (or seeks to ignore or nullify) federal laws. This essay from Robert Levy with the Cato Institute is informative:
It acknowledged that states can declare federal laws unconstitutional; but the declaration would have no legal effect unless the courts agreed. Here’s what Madison wrote: State “declarations … are expressions of opinion, (intended only for) exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.”
Madison also published Notes on Nullification in 1834. There, he wrote that an individual state cannot unilaterally invalidate a federal law. That process requires collective action by the states.
Since then, nullification attempts have failed on three occasions: In 1828, South Carolina tried to nullify two national tariffs. President Andrew Jackson proclaimed nullification to be treason; Congress authorized Jackson to send troops, and the state backed down. In 1859, the Supreme Court rejected nullification in Ableman v. Booth.
Booth had frustrated recapture of a slave in violation of the Fugitive Slave Act. Wisconsin’s Supreme Court held the act unconstitutional, but the U.S. Supreme Court reinstated the conviction. In 1958, after southern states refused to integrate their schools, the Supreme Court in Cooper v. Aaron held that nullification “is not a constitutional doctrine … it is illegal defiance of constitutional authority.”
Fans of nullification count on the states to check federal tyranny. But sometimes it cuts the other way; states are also tyrannical. Indeed, if state and local governments could invalidate federal law, Virginia would have continued its ban on inter‐racial marriages; Texas might still be jailing gay people for consensual sex; and constructive gun bans would remain in effect in Chicago and elsewhere.