PHOENIX, Ariz. (Jan. 7, 2016) – A bill prefiled in the Arizona House would set the stage for the state to refuse cooperation with any executive orders or Supreme Court opinions “not in pursuance of the Constitution,” nullifying such actions in effect.
Rep. Mark Finchem (R-Tucson), along with seven other sponsors and cosponsors, introduced House Bill 2024 (HB2024) on Dec. 30. The legislation would prohibit the state and all its political subdivisions from using any personnel or financial resources to enforce, administer or cooperate with any executive order, federal agency policy directive or Supreme Court opinion not in pursuance of the Constitution and “not affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”
The proposed law builds on an amendment passed in 2014 that enshrined the anti-commandeering doctrine in the Arizona constitution. The amendment explicitly affirms the state’s right to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution.”
HB2024 takes the next step, establishing the legislature’s responsibility to refuse cooperation with enforcement or implementation of specific federal actions within the framework established by the state constitutional amendment.
Finchem said it was important for the state to act and place the federal government back within its prescribed role.
“So often see the supremacy clause thrown on the table as though it were a trump card. But when the federal government acts outside of the authority given it by the Constitution, the States have an obligation to hold Congress, the Executive and the Court accountable to live by the original law of the land – the Constitution that our delegates approved.”
If HB2024 passes in its current form, it leaves an important question up in the air: how does the Arizona legislature determine constitutionality of a federal action and if it triggers an obligation to act under the law? The legislation does not include any process for determining if a federal act or court opinion is in pursuance of the constitution. As a result, HB2024 would likely require further action to put into full effect.
Since the state constitutional amendment passed in 2014 already put the mechanism in place, the only thing needed is a simple directive in the form or state legislation to refuse material support and personnel to specifically defined executive or agency orders. The legislature could make HB2024 immediately effective by removing the requirement for a determination of constitutionality and simply requiring the state to refuse cooperation with “any executive order, federal agency policy directive not affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”
HB2024 follows the blueprint the “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can nullify in effect many federal actions.
With or without a determination of constitutionality, HB2024 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 anti-commandeering 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.”
HB2024 will be referred to a committee once the legislative session gets underway later this month. It will have to pass through the several committees by a majority vote before being considered by the full House.
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