JEFFERSON CITY, Mo. (Dec. 20, 2015) – A proposed amendment to the Missouri state constitution would create a process for Missouri voters to nullify in effect any federal law or regulation.
Rep. Jeff Pogue (R-143) prefiled House Joint Resolution 62 (HJR62) on Dec. 16. If the resolution passes by a majority in both houses of the Missouri general assembly during the 2016 session, the people will vote on the proposed state constitutional amendment in the following general election.
The proposed amendment creates a process to end state cooperation with federal government actions deemed deemed unconstitutional by Missouri voters, nullifying such actions in effect.
The amendment would allow either the state legislature, or the people via the referendum process, to place any federal act on the ballot for the people to decide “whether or not it is constitutionally proper under the limited and delegated powers of the federal government.”
If the majority of voters find the federal act constitutional, the state will enforce it. But if the majority of voters deem a law unconstitutional, “then it shall not be enforced by any agency, court, or political subdivision of this state and no state moneys shall be expended for the enforcement of the federal law.”
A vote for unconstitutionality would also strip all state courts of jurisdiction to enforce the federal act or “any substantially similar state law.”
EFFECT
The proposed constitutional amendment would not attempt to prohibit federal enforcement of an act declared unconstitutional by Missouri voters. But it would end any state cooperation with the feds. Because of its massive size and reach, the federal government has become more and more dependent on state and local support to carry out its laws and regulatory programs. As the National Governor’s Association said during the 2013 partial government shutdown, “States are partners with the federal government in implementing most federal programs.”
Because the federal government depends so heavily on state assistance, refusal to cooperate with enforcement of a federal act would serve to nullify it in effect.
The process follows the blueprint the “Father of the Constitution” created for resisting federal power. In Federalist 46, James Madison outlined several steps that states could take to effectively stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
LEGAL BASIS
HJR62 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The doctrine rests primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
NEXT STEPS
HJR62 will be referred to a House committee once the regular session gets underway in January. It will need to pass out of committee by a majority vote before moving on for consideration in the full House.
