PHOENIX, Ariz. (Feb 1, 2017) – Today, the Arizona House passed a bill that would set the stage for the state to refuse participation in the enforcement of federal acts or regulatory programs.
Introduced by Rep. Bob Thorpe, House Bill 2097 (HB2097) creates a process for the state to end material support or enforcement assistance for any “action” of the United States government that constitutes “commandeering.” Doing so is an effective method to block federal programs in practice and effect.
The House passed HB2097 by a 38-22 vote.
“We are not a political subdivision of the federal government,” said Rep. Eddie Farnsworth in support of the bill on the House floor today.
IN PRACTICE
The proposed law closely mirrors a state constitutional amendment passed in 2014. The amendment explicitly affirmed 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.”
HB2097 defines commandeering differently than federal courts have defined the word under the long-established anti-commandeering doctrine, the bill defines “commandeering” as:
ANY ACTION THAT EITHER:
(a) IS NOT IN PURSUANCE OF THE CONSTITUTION OF THE UNITED STATES AND THAT HAS NOT BEEN AFFIRMED BY A VOTE OF THE CONGRESS OF THE UNITED STATES AND SIGNED INTO LAW AS PRESCRIBED BY THE CONSTITUTION OF THE UNITED STATES.
(b) EXCEEDS THE POWERS OF THE CONGRESS OF UNITED STATES ENUMERATED IN THE CONSTITUTION OF THE UNITED STATES.
The bill defines “action” as “an executive order issued by the president of the United States; a rule, regulation or policy directive issued by an agency of the United States; a ruling issued by a court of the United States; a law or other measure enacted by the Congress of the United States.”
In short, should the legislature determine that a federal program was being implemented by unilateral federal agency rule, or outside the scope of the enumerated powers of the Constitution, it would trigger the state’s authority to withdraw support and resources from implementation of that program.
This process could start with something as simple as a written complaint by a local resident, group, business or other entity. The legislature would then need to consider the validity of the compliant and take action in response.
“The legislature shall consider written complaints received from residents, groups, organizations, businesses or government agencies of this state concerning any suspected commandeering action by the United States government.”
Residents of Arizona could, for example, submit written complaints about the National Firearms Act of 1934, the EPA Clean Power Plan, the Controlled Substances Act of 1970 and its impact on the state’s medical marijuana program, and more.
EFFECTIVE
HB2097 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.
LEGAL BASIS
The bill 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.”
WHAT’S NEXT
HB2097 will now move to the Senate for further consideration. Once assigned to a committee, it must pass by a majority vote before moving forward in the legislative process.
