A proposed amendment to the Oklahoma state constitution would set the stage to nullify overreaching federal actions by denying the federal government state supplied material support and resources it needs.

Sen. Nathan Dahm (R-Broken Arrow) introduced SJR 23 on Feb 4. The proposed amendment would establish that the “state may 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.” It then authorizes three mechanisms to ban cooperation with federal actions.

  1. Passing an initiative and referendum pursuant to Section 1 et seq of Article V of the Oklahoma Constitution;
  2. Passing a bill or resolution pursuant to Sections 33, 34, and 35 of Article V of the Oklahoma Constitution; and
  3. Pursuing any other available legal remedy.

If the people or their representatives exercise their authority pursuant to this section, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with the designated federal action or program.

This amendment would enshrine the anti-commandeering doctrine (see below) into the state constitution and create a framework through which Oklahomans can address a wide range of federal abuses of power, from gun control, to Obamacare, to common core to NSA spying.

The provisions allowing the people to restrict federal actions through referendum represents a major step forward in reining in federal overreach. It takes the process out of the hands of the political class and vests it in the people. If ultimately approved, this amendment will give the people of Oklahoma a powerful tool they can use to protect themselves from an out of control federal government.


SJR23 follows the blueprint James Madison gave to stop federal overreach through state action. In Federalist 46, the Father of the Constitution wrote that when the federal government commits an “unwarrantable act,” or even an unpopular “warrantable” act “the means of opposition to it are powerful and at hand.” Madison listed “refusal to cooperate with officers of the union” as one of the actions states should take to check federal power. The proposed amendment would create a framework for implementation of Madison’s blueprint.

This strategy has the potential to shut down overreaching federal actions. The feds depend on state cooperation and resources to do almost everything. They need state and local law enforcement to enforce its gun control measures and fight their drug war. They need state resources and personnel to implement their national health care program. They needs state cooperation to spy on us.

In fact, during the federal government shutdown, the National Association of Governors admitted, “States are partners with the federal government in implementing most federal programs.” That means states can create impediments to enforcing and implementing “most federal programs.”


Although the amendment seeks to limit the federal government to “purposes that are consistent with the Constitution,” it does not rely on a finding of constitutionality to trigger a denial of material support and resources. Instead, it rests on a well-established legal principle known as the anti-commandeering doctrine.

The Supreme Court has repeatedly held that states cannot be required to expend resources or manpower to help the federal government carry out its acts or programs. This legal principle rests primarily on four Supreme Court opinions dating back to 1842. In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Other key cases include New York v. United States (1992), Printz v. United States (1997), and Independent Business v. Sebelius (2012).

Noted Constitutional scholar Randy Barnett of Georgetown Law said, “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”


SJR23 would establish a legal, orderly process allowing Oklahomans to rein in federal power. It would also set a precedent for other states to follow. Madison wrote that a single state taking action against the federal government would create “serious impediments.” But when multiple states act, it would “present obstructions which the federal government would hardly be willing to encounter.”

SJR23 was referred to the Senate Rules Committee.

If you live in Oklahoma, click HERE for action steps to help pass SJR23

Mike Maharrey

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