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Montana GOP aims to legislate an imaginary future



In addition to drafting legislation we will discuss in just a second, Gary Marbut makes shooting targets for police departments. If you need dummies that will "provide the shooter a momentary target exposure," his website says, Gary Marbut is your man. On an unrelated note, he has also submitted a bill that would make it illegal for federal agents to make arrests in Montana without first getting permission from local sheriffs.

As a man who appreciates a momentary target exposure, I would like to thank Marbut for resubmitting his "Sheriffs First" bill, which first met then-Gov. Brian Schweitzer's veto in 2011. The 2013 version advanced from committee earlier this month and, if it passes the legislature, will skirt the governor's desk to appear before voters as a ballot question in 2014. After that, we need only sit back and watch our sheriffs enforce their constitutional supremacy over the FBI.

I suppose it is also possible courts will rule that Montanans do not get to vote ourselves exempt from federal law enforcement, in which case Marbut continues in his capacity as facilitator for noisy discharges of power. Also as facilitator for snarky newspaper columns, as luck would have it. But the important thing is that Montana's target industry continues apace.

Consider another bill the state House endorsed in February, which would prohibit police from enforcing any future federal ban on assault rifles. There is no federal assault rifle ban now, but if it happens we will not be bound by it. While nullification has a rich history, beginning in the Jacksonian era and ending somewhat conspicuously with the Civil War, the Montana House has achieved something unprecedented by moving to nullify a federal law that hasn't been passed yet.

Having resolved all problems within the state and corrected the federal government, the Montana Legislature now turns to governing the future. That, or no one behind either of these bills believes they will ever resemble binding legislation.

Courts have been rejecting states' attempts to nullify federal law since the 19th century. This mass of precedent is buttressed by the helpfully named Supremacy Clause of the Constitution, as well as by a general reluctance among voters to defy the U.S. government. Notwithstanding certain agile interpreters of the Tenth Amendment and Brian Dennehy in First Blood, we all pretty much agree that the feds are in charge.


The only people who don't are the constitutional scholars of the Tea Party, plus a handful of similar libertarian and anti-federalist groups. Among those patriots, asserting sheriffs and state legislatures as the supreme law of the land is an important step in restoring right governance to the nation. It is so important that they are willing to overlook the last 150 years of consensus that it will never, ever work.

That's good news for Montana Republicans. Without precedent dismissing nullification, they might have to worry that their bill declaring Montana's authority over the federal government might actually become a law. Fortunately, American jurisprudence ensures that they can propose any number of empty bills to thrill the Tea Party set, safe in the knowledge that none of them will ever affect the state.

I am glad they want to be judged on their records. I am worried, though, that they will invent so many exciting fake laws that they forget to pass some real ones.

The 2011 session of the legislature missed an opportunity to meaningfully defy the federal government when it failed to resolve the state's medical marijuana law. That policy remains a knot of contradictory ends tied by confusing means, and the House has shown little interest in untangling it. The Republican-controlled Human Services Committee has tabled four medical marijuana bills so far this session. Decriminalizing a federally controlled substance would put Montana sheriffs cleanly in charge of law enforcement, but the GOP is not interested.

A coherent medical marijuana law is the kind of legislation that could influence the whole state. It might revive or finally kill an industry, for better or for worse. It is also politically risky—the sort of thing voters get principled about, a rare conservative wedge issue. In a reliably red district, it's the kind of issue that could cost you the primary, and House Republicans are wise to battle the tyrannical government of the future United States instead.

I do not think they are being particularly helpful, though. The Montana Legislature meets once every two years. It was built for efficiency, and proposing symbolic laws to satisfy party activists is not efficient. The House is likely to stay Republican for the foreseeable future, too. In their understandable desire to fend off the gold-buying wing of their party, the Montana GOP should take care that Republican government does not become synonymous with Republican politics.

There are a million people in this state, and we have bigger problems than the ongoing presence of federal law enforcement. We sent people to Helena to try to solve them, not to declare us all supreme.

Dan Brooks writes about politics, consumer culture and lying at

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