Here is the bottom line for this lengthy post. Vote NO on Prop 122 and then get out on the physical and virtual streets and get everyone you know to do the same. Here is why.
Yesterday I received in the mail a glossy flyer with pictures of a very young girl. The flyer trumpets "Your vote can make all the difference to the victims of child abuse", "... an out-of-touch congress passes an unconstitutional federal law that forces CPS to hide botched investigations of abused kids.", and "Protect our children from abuse. Vote YES on 122." After I tweeted it as "my nomination for the lowest bottom sucking ad of the AZ election", I did some research on what the flyer claimed.
Following the link in the flyer leads to this document by one of the 122 supporters - Jonathan Paton. It is mainly a lot of griping about a law known as CAPTA and, he asserts, how it interfered with investigations of AZ Child Protective Services. Here is essence of Paton's claim.
In a period of one year six Tucson children had three things in common: CPS investigated their parents for abuse, CPS lost track of them and at the end of one year all six children were dead.
As a result of these deaths, the Arizona Legislature passed reforms to make CPS records available in cases where the child died or there was a near fatality. The bills were passed with overwhelming majorities of Republicans and Democrats. The idea was that Arizona would have the most open child protective services system in the U.S.
The problem was that despite changes in Arizona law, CPS still managed to keep records of these children hidden from public scrutiny. Each time CPS and their attorneys cited regulations from a federal law called the Child Abuse Prevention and Treatment Act (CAPTA). Washington, they said, bars Arizona from releasing records
You can find out more about CAPTA at Wiki (and lots of other federal web sites)
I am prepared to believe that some people involved with CPS did hide evidence of mismanagement. We all know that CPS has been a problem for quite a while. The press was full of instances of investigations not done or done badly. OK, here is a government agency that needs fixing and Governor Brewer set AZ on the path toward fixing it. But this sorry mess does not and should not be an excuse for a political campaign that amounts to nullification or possibly secession. To do so, I assert, is itself an act of abuse.
What is the real driver behind Prop 122? Yesterday I posted some background on Prop 122.
Laurie Roberts of azcentral wrote a blistering critique of the whole ad campaign
Today I point you to a legal analysis by AZBlueMeanie at Blog for Arizona. Snippets follow.
Prop. 122 is unconstitutional. The U.S. Constitution, Article VI, Clause 2 (the “Supremacy Clause”) provides that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” The Arizona Constitution, Article 2, Section 3 similarly provides that “The Constitution of the United States is the supreme law of the land.”
Americans fought a bloody Civil War over the now long discredited political doctrines of “nullification, interposition and secession.” The post-Civil War 14th Amendment reaffirmed the supremacy of the federal government through the “privileges or immunities clause” – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
The U.S. Supreme Court has always rejected the doctrines of “interposition and nullification.” In Cooper v. Aaron, 358 U.S. 1 (1958), the Court held that since the Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land and Marbury v. Madison gave the U.S. Supreme Court the power of judicial review, the precedent set forth in Brown v. Board of Education is the supreme law of the land and is therefore binding on all the states, regardless of any state laws contradicting it. The Supreme Court rejected the doctrines of nullification and interposition, which had been invoked by segregationists.
Segregation supporters argued that the states have the power to nullify federal laws or court rulings that they believe to be unconstitutional and the states could use this power to nullify the Brown decision. The Arkansas laws that attempted to prevent desegregation were Arkansas’ effort to nullify the Brown decision. The Supreme Court held that the Brown decision “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation.” Thus, Cooper v. Aaron held that state attempts to nullify federal law are ineffective.
Moreover, since public officials are required to swear an oath to uphold the Constitution (as per Article VI, Clause 3), for these same officials to ignore the Court’s precedents is equal to a violation of that oath.
Only an Article III federal court can determine whether a federal law is unconstitutional. No state court, no state legislature or political subdivision of a state, nor the citizens of a state acting through referendum or initiative possess the power under the U.S. Constitution to declare a federal law unconstitutional.
Therefore, should it pass, Prop 122 is destined to be ruled unconstitutional and defending it will do nothing more than waste taxpayer money and distract us from the pressing problems that need our attention.
What if it does pass? Here is AZ Rep. Chad Campbell's take. (h/t AZBlueMeanie)
Contrary to proponents' claims, if Proposition 122 passes not a single child will be saved, the Grand Canyon will not become a state park, and Arizona legislators will not be able to tell the federal government how to do its job. (And let's be honest, the only thing more frightening than Congress running the show is putting the Arizona Legislature in charge, am I right?)
Because no matter what some people believe, states do not have the authority to tell the federal government what to do. It's called the supremacy clause of the United States Constitution. Attempting to alter the Arizona Constitution will not change it. If this proposition passes, there will be no substantive changes in how we interact with the federal government. The only thing that will happen, and this is a guarantee, is that we'll end up wasting taxpayer dollars on a court case we are certain to lose.
Furthermore, if Proposition 122 passes, it will erode our already tenuous relationship with the feds and jeopardize desperately needed funding for transportation, disaster relief and other critical programs. So, not only will we be wasting money in court, but we'll be sending our already paid federal tax dollars to other states. Sounds like a great deal, right?
Once it gets ruled unconstitutional, the only question left to ask is, "What will the supporters of Proposition 122 do next?" Their only option will be to propose seceding from the Union. Think about that for a minute, and I think it about sums up the outlandish nature of any supporting arguments for Proposition 122.
Regardless of whether 122 is approved by the voters in November, the analyses presented here make one thing crystal clear to me. Any sitting legislator who voted for this measure is in violation of their oath of office. And any candidate aspiring to public office who supports 122 does not deserve that office because they cannot in good conscience take that same oath - to uphold the constitution of the United States. That means you, Dicey Ducey.