PHOENIX (March 13, 2015) – A bill that would help block the implementation of rules, regulations and directives issued by unelected bureaucrats in federal agencies passed the Arizona House yesterday.
Introduced by State Rep. Bob Thorpe (R-6) on Feb. 11, House Bill 2058 (HB2058) creates a blanket ban on the “state use of personnel or financial resources to enforce, administer or cooperate with any rule, regulation or policy directive…by an agency, board, commission, department or other entity of the federal government” unless the rule or regulation was affirmed by Congress, signed into law as prescribed by the Constitution, and is in pursuance thereof.
The bill allows the legislature when in session, or the governor, senate president and speaker of the house when out of session, to waive the prohibition of support 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 federal agency rules and regulations. 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 agency rules, regulations or directives, they will have to risk their office to do it.
HB2058 passed by a 34-24 vote in the state house on March 12 and moves on to the Senate for consideration.
In many ways today, bureaucrats in federal agencies act as the legislative branch. Congress passes open-ended acts empowering the agency in charge and giving it wide authority to implement the law as it sees fit. in practice, these agencies often unilaterally change the intended nature and effect of the bill. Examples include the ATF using its authority to ban certain types of ammunition, EPA rule-making on waterways and the IRS creation of subsidies.
These executive branch agency actions flip the constitutional structure on its head, allowing unaccountable bureaucrats to make law instead of representatives accountable to the people, as intended.
HB2058 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.
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 from implementation of federal agency rules and regulations, HB2058 falls under this legal principle 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.
“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.
Not only is it legal, HB2058 would prove 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.”
HB2058 now moves to the state Senate where it will first be assigned to a committee by Sen. President Andy Biggs
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