After falling short in his bid to block Texas from complying with the U.S. Supreme Court’s gay marriage ruling in 2015, state Rep. Cecil Bell Jr. is back this legislative session with a bigger, bolder idea — a process allowing Texas to declare federal laws, rules and court decisions unconstitutional and unenforceable in the Lone Star State.
The Republican from Magnolia also wants treaties and presidential orders to fall under state scrutiny to block any federal action taken beyond the scope of power delegated to the U.S. government by the Constitution.
“I think it is important for patriotic Americans to recognize the strength and necessity of our Constitution. It is also important that we defend that Constitution,” Bell told the Texas House Select Committee on State and Federal Power and Responsibility.
But during Thursday’s committee hearing on House Bill 2338, which Bell named the Texas Sovereignty Act, state Rep. Chris Turner questioned the constitutionality of the measure and said it appeared to be a recipe for chaos.
“If I am remembering my history correctly, I think nullification was more or less decided in the time of Andrew Jackson — and it was certainly decided after the Civil War — that we don’t have the ability to nullify federal law,” said Turner, D-Grand Prairie.
“If states have the ability to nullify any federal laws they want, then we don’t have a nation anymore,” Turner said.
Michael Badnarik, the Libertarian Party’s presidential candidate in 2004, disagreed, telling Turner that states have the authority to reject unconstitutional laws.
“Any law which violates the life, liberty and private property of the people is not pursuant to the Constitution and is not legitimately part of the Constitution,” Badnarik said.
HB 2338 would create a 12-member Joint Legislative Committee on Constitutional Enforcement, equally divided between House and Senate members, that would study the legality of federal actions based on a plain reading of the U.S. Constitution as understood “at the time of the framing and construction … by our forefathers.”
If the committee determines a federal action violates the U.S. Constitution, and the Texas House and Senate agreed, the finding would be sent to the governor for approval.
Under the bill, federal acts deemed unconstitutional would have “no legal effect in this state” and couldn’t be enforced by state or local officials, and the Texas attorney general would be able to prosecute anybody who tries to enforce the banned law, rule or court opinion.
Bell said the measure was a natural outgrowth of his long focus on protecting the sovereignty of Texas, which included a 2015 bill that would have banned state and local government employees from issuing a marriage license to same-sex couples in case the Supreme Court overturned, as many expected, state bans on gay unions. That bill, however, never got a floor vote.
“This (latest bill) does not seek to do anything other than put in place an orderly process to be certain that the sovereign rights of the states and the citizens are protected,” he told the American-Statesman.
During Thursday’s public hearing, Barbara Harless with the North Texas Citizens Lobby said Bell’s bill would reinforce the principles of freedom and liberty while protecting Texans from what she considers illegal federal acts, including the Supreme Court ruling that established a right to abortion.
“We elect you guys to stand up for us, to stand up against the federal tyrant,” said Harless, one of about 18 people who spoke in favor of HB 2338.
Kathie Glass, the Libertarian Party’s 2014 candidate for governor, said Texans have grown weary of an overreaching federal government.
“Wouldn’t it be great if the federal government was not supreme over Texas and we didn’t have to obey federal bureaucrats, judges, legislators and presidents when they get out of line?” Glass said. “Wouldn’t it be great if Texas can treat Supreme Court opinions as just that, opinions, and not edicts that we must obey?”
Badnarik applauded the committee for taking action on Bell’s bill but warned that HB 2338 might not go far enough.
“With the probability of a worldwide economic recession and the possibility of war with Russia and Korea, I think it’s time once again for Texas to reassert its independence. Secession, also known as independence, is moral, legal, commonplace, desirable and very, very possible here in the state of Texas,” he said.
Badnarik told the committee that he had developed a one-hour PowerPoint presentation on the subject that he offered to present at a later date. There were no apparent takers.
The committee hearing ended without a vote on HB 2338. Identical legislation — Senate Bill 2015 by state Sen. Brandon Creighton, R-Conroe — hasn’t yet been acted on in the Senate.