PHOENIX (March 3, 2015) Yesterday, an Arizona House committee voted 5-3 to pass a bill that would help seal the coffin in the Grand Canyon State on unilateral presidential executive orders intended to circumvent Congress’ role as the legislative body.

Introduced by Rep. Bob Thorpe, Rep. Mark Finchem, and Rep. Brenda Barton, House Bill 2368 (HB2368) would prohibit the state from “using any personnel or financial resources to enforce, administer or cooperate with an executive order issued by the president of the United States 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.” The bill would also prohibit the state from administering or cooperating with a policy directive issued to law enforcement agencies in the state by the United States Department of Justice if not affirmed by a vote of the Congress.

The legislation passed the House Committee on Federalism and States’ Rights 5-3 on Feb. 28 and cleared the Rules Committee by the same margin yesterday. The bill will now move on to the full House for consideration.

HB2368 works in tandem with Prop 122, a state constitutional amendment approved by the Arizona voters last November. The proposition placed language in the state constitution empowering the state to pass referendums, bills, or to use other legal means, to end cooperation with unwarranted federal acts.

HB2368 specifically addresses unconstitutional rule-making process in the executive branch. Through executive orders, and agency rules, the president’s agencies are able to create or change law on a whim. Recent examples include a “redefinition” of the phrase “waters of the United States” by the Environmental Protection Agency. A proposed new rule would suddenly make virtually all in state waters part of the EPAs sphere of control. The ATF also recently proposed reclassifying the popular M855 AR-15 round as “armor piercing” –  creating a backdoor ban.


HB2368 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.”

In a discussion on similar bills last year, Judge Andrew Napolitano agreed, suggesting that even a single state withdrawing all enforcement and resources would make federal laws “nearly impossible to enforce.”


HB2368 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.

“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,” noted Constitutional scholar Randy Barnett of Georgetown Law said.


In Arizona: Contact your state representative, and urge them to support this important bill. You can find their contact information by clicking HERE.



Mike Maharrey

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