Law & Principles
Ray Carter | April 21, 2021
Senate votes to fund challenges against federal government
State senators have voted overwhelmingly to spend millions of dollars each year challenging federal actions that officials believe violate the U.S. Constitution’s limits on federal authority.
House Bill 1236, by House Speaker Charles McCall and Senate President Pro Tempore Greg Treat, requires the office of the attorney general to “monitor and evaluate any action by the federal government” to determine if any actions taken by the federal government are “in violation of the Tenth Amendment to the Constitution of the United States.”
The Tenth Amendment states, “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.”
HB 1236 creates a State Reserved Powers Protection Unit within the Office of the Attorney General to conduct those reviews and challenge the constitutionality of federal actions in court. HB 1236 also provides $10 million in funding for the newly created unit.
Supporters said the legislation is needed to protect the rights of Oklahomans.
Sen. Rob Standridge, R-Norman, noted that President Joe Biden has issued executive orders that provide taxpayer funding for abortions, ban oil-and-gas exploration on federal lands at the expense of U.S. energy independence, and target the Second Amendment right of self-defense.
“We must push back against this type of effort to erode the rights and freedoms of our people,” Standridge said.
Critics dismissed the bill as either unnecessary or a way to sidestep bigger issues.
“I’m concerned that we’re going to set aside $10 million for political points to push back against a president when we could be using those funds to investigate fraud and protect Oklahomans directly,” said Sen. Julia Kirt, D-Oklahoma City. “This is a stunt.”
Sen. Kay Floyd, D-Oklahoma City, said during her time in office the Oklahoma Legislature has passed 21 bills that were “questionably unconstitutional.”
“I wish that we were actually going to start monitoring and evaluating the bills that we pass for constitutionality because I think that we should clean our own house first,” Floyd said.
Sen. Warren Hamilton, R-McCurtain, said he believed the attorney general “has an implied task for his job description to already do what this bill assigns him,” and that it was the role of the Oklahoma Legislature to push back against federal overreach.
“It is our job, our duty,” Hamilton said.
Treat said the legislation, as amended in the Senate, is now more likely to survive judicial challenges and dedicates real resources to the effort.
He said earlier versions of the bill would have had the Oklahoma Legislature decide the constitutionality of actions, which he said is a “clear violation of separation of powers” and embodied the discredited legal theory that states can unilaterally nullify federal actions.
Treat said the current version of HB 1236 avoids those legal problems and “has teeth in it.”
“We’re putting $10 million behind the Tenth Amendment annually to be able to push back on federal overreach,” Treat said. “To say that is without teeth is not only a gross exaggeration or misrepresentation of truth, it’s a complete and utter lie. Have we ever put $10 million behind a legal remedy to push back on the federal government?”
HB 1236 passed the Oklahoma Senate on a 33-14 vote. It was opposed by all Democratic lawmakers as well as five Republicans.
HB 1236 now returns to the Oklahoma House of Representatives for further consideration.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.