PHOENIX (March 17, 2015) Today, an Arizona Senate committee passed 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 under the Constitution. It previously passed the House by a 36-24 vote
Rep. Bob Thorpe, Rep. Mark Finchem, and Rep. Brenda Barton introduced House Bill 2368 (HB2368) on Jan. 28. If passed into law, it 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 any policy directive issued to law enforcement agencies in Arizona by the United States Department of Justice that was not affirmed by a vote of the Congress.
Today, the Senate Federalism, Mandates and Fiscal Responsibility Committee passed it with four yes votes, zero no votes, and three members not voting. The bill now moves to the Senate Rules Committee for further consideration.
A floor amendment approved by the House makes the bill even stronger. It adds language making it clear that any policy directive must not only be signed into law as prescribed by the Constitution, it must also be “in pursuance thereof,” making it clear that the bill creates a blanket prohibition on unconstitutional executive orders.
The amendment also allows the legislature when in session, or the governor, senate president and speaker of the house when out of session, to waive the prohibition on a case-by-case basis. This creates a mechanism to put on public record just who commits Arizona resources to the support and implementation of these executive orders. This kind of spotlight doesn’t exist in any other state. Legislators generally sneak in these actions as part of a big budget bill, or they get done in near-secret by bureaucratic appointees of agencies themselves. Under this bill, if Arizona politicians want to implement any executive orders, they will have to risk their office to do it.
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.
LEGAL
While Assistant Minority Leader, Rep. Bruce Wheeler made the claim that the bill violates the Constitution’s supremacy clause, nothing could be further from the truth. Anyone even lightly versed in modern Supreme Court jurisprudence recognizes that the Supreme Court has held for over 170 years in multiple cases that the federal government cannot require a state to expend resources or use personnel to help effectuate a federal act or regulatory program.
By withdrawing state support, HB2368 does just that.
This is known as the anti-commandeering doctrine. The 1997 case, Printz v. US serves as the cornerstone. In it, Justice Scalia held:
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.Â
“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.
EFFECTIVE
Not only is it legal, HB2368 would be effective too. It 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.”
