MT: Prosecuting judges for enforcing federal laws and court decisions

Article VI of the U.S. Constitution provides “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This restriction, however, has not prohibited several bills in the Montana legislature to provide that if a state judge is “bound thereby” he or she will be prosecuted.

HB 381makes it a misdemeanor to enforce any federal firearms law “that conflicts with the provisions of Title 30, chapter 20, part 1 [of the Montana Code]”. That provision, the Montana Firearms Freedom Act was enacted in 2009 and declares, in relevant part:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

HB 443 makes a similar statement with respect to interstate commerce as it relates to food (possibly in an effort to directly challenge Wickard v. Filburn, in which the U.S. Supreme Court held a farmer raising wheat on his own farm to feed the chickens on his farm was engaged in interstate commerce). The bill declares as a violation of the U.S. Constitution:

any federal regulation, rule, or policy promulgated after [the effective date of this act], and any executive order issued by the president of the United States after [the effective date of this act] that seeks, purports, or is otherwise intended to regulate, in any way, the manufacture, production, processing, packing, exposure, offer, possession, and holding of food for sale, the sale, dispensing, and giving of food, and the supplying or applying of food intended to remain in this state and not intended to enter interstate commerce

While the descriptor portion of the law is limited to federal “regulation, rule, policy…[or]…executive order”, the punishment provisions are more expansive: any federal OR state judge that attempts to enforce or attempt to enforce an act, order, law, executive order, court decision, or regulation of the United States government in violation of the above is guilty of a felony.

SB 150 creates the civil tort and crime of “Official oppression” to include “arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or deni[al] or imped[ing] another in the exercise or enjoyment of any right, privilege, power, or immunity”. The bill permits recovery of damages from judges individually and personally, with no indemnification from the government, unless the judge functioned in a “normal and usual judicial capacity” and in includes judges and other officials “of the federal government or of another nation or an organization of nations.”

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