Yesterday, the Montana state Senate gave final approval to bill that would shine light on the resources the state devotes to implementing federal regulations and the corresponding mandates placed upon it. Having already passed the state House, the bill will now go to the governor’s desk.

Introduced by Rep. Bill Harris (R-29), House Bill 315 (HB315) revises the current Montana Federal Mandates Act by stating the intent of the legislature that “any implementation of federal policies in and for Montana by federal executive branch agencies that is contrary to the United States constitution and fundamental notions of federalism and self-determination must be identified, countered, and resisted.” [emphasis added]

The amended law creates a series of studies and reports on the effects of federal mandates on the state of Montana. It reads, in part:

Prior to recommending to the legislature a budget for a state agency that is charged with implementing federal mandates, the governor shall require that the state agency provide information regarding any monetary savings for the state and any reduction in regulatory burdens on local governments and on the public that could be or have been achieved through the development of state policies that meet the intent of applicable federal statutes but do not necessarily follow all applicable federal regulations, guidelines, or policies. The state agency shall also provide advice to the governor regarding any changes in state statutes that are necessary to provide the state agency the authority to implement state policies in a way that will create additional savings or greater reductions in regulatory burdens.

The legislature is also empowered to conduct studies and reviews of the effects of federal programs:

In exercising its authority as an equal branch of state government, the legislature may conduct any legal review or fiscal analysis that it considers necessary to effect the purpose and intent of this part. The governor, the director or chief executive officer of any agency within the executive branch, or any officer listed in Article VI, section 1, of the Montana constitution shall, upon request by the legislature, immediately provide any information prepared, compiled, developed, detailed, described, referenced, analyzed, reported, or in any other manner considered in conjunction with this part.

The bill passed through the state Senate with a 29-21 vote on March 26. It had previously passed through the state House by a 58-41 margin last month. Governor Bullock must sign or veto the legislation within 10 days after it is transmitted to him, or HB315 becomes law without signature.

At the very least, this legislation will slow down the process of the Montana state government complying with federal mandates, and provide increased transparency when it is being attempted.

Reporting of this magnitude will uncover just how much the federal government relies on states like Montana to enforce its laws. It will shine the brightest light on the nature of federal/state partnerships to date and illuminate just how far the fed’s tentacles reach into Montana, from drug and gun enforcement, to environmental regulations. This kind of reporting will help the Montana legislature find ways to reduce the federal burden placed upon them.

HB315 also adds additional credibility and recognition to the idea of anti-commandeering, which in spite of the Governor being seemingly unaware of it, is an undeniably legal and valid tenet of the American republic.

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.”

The people of Montana, and other states as well, are long overdue for this kind of initiative. Keeping in pursuance with federalism, HB315 is a positive step towards increased state sovereignty.


For Montana: Call Governor Bullock and politely urge him to sign this legislation. His number is 406-444-3111

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