TALLAHASSEE, Fla, (Apr. 15, 2015) – A Florida bill that would create a mechanism for the state to evaluate the constitutionality of federal laws and mandates in light of the original meaning of the Constitution passed a Senate committee last week.
The bill would create a framework through which the state could ultimately take action to nullify unwarranted federal actions.
The Committee on Judiciary and Sen. Greg Evers (R – Pensacola) introduced S1528 in February. The legislation would create a Commission on Federalism empowered to “evaluate a federal law, agency policy, mandate, or executive order.” The bill also authorizes a range of actions the commission can take if the majority of the members find such a law or mandate “is not authorized by the powers delegated to the Federal Government or any of its agencies under the United States Constitution, or violates the principle of federalism.”
The committee will determine if the federal policy “is authorized by any of the express enumerated powers contained in the United States Constitution and duly ratified amendments,” or if it violates the principles of federalism by affecting the distribution of powers between the state and federal governments, limiting the policymaking discretion of the state, or impacting the rights reserved to the states and the people under the Ninth and Tenth Amendments.
Actions open to the commission upon determining an act falls outside of the federal government’s delegated powers include requesting additional information from a member of Florida’s congressional delegation on the act or requesting assistance in communicating with the applicable federal agencies, serving written notice to the responsible federal entity and requesting a response by a given date, requesting a meeting with officials within the responsible federal agency, and communicating with other states to determine an appropriate response.
The commission would also have the power to ask the governor to convene a special legislative session “to respond to the evaluated law, agency policy, mandate, or executive order.”
The ability to request a special session would set the stage to apply the anti-commandeering doctrine and deny state cooperation with implementation of the federal law, mandate or executive order.
S1528 requires the commission to examine federal law in light of the original meaning of the Constitution, not bound by current Supreme Court opinion.
(a) In evaluating a federal law, agency policy, mandate, or executive order, the commission shall rely on:
1. The text of the United States Constitution and duly ratified amendments.
2. The meaning of the text of the United States Constitution and duly ratified amendments at the time of drafting and ratification.
3. A primary source document that is directly relevant to the drafting, ratification, or initial implementation of the United States Constitution and duly ratified amendments or created by a person directly involved in the drafting, adoption, ratification, or initial implementation of the United States Constitution and duly ratified amendments.
(b) The commission may rely on other relevant sources, including federal court decisions. However, the commission’s evaluation of a federal law, agency policy, mandate, or executive order is not bound by a holding by a federal court.
While S1528 provides no mechanism to actually address unconstitutional federal overreach, it does provide a framework for the state of Florida to build on, and sets the stage for future nullification actions. Passage of the bill would also provide a strong indication that Florida takes its sovereignty seriously and is on the path to limiting federal overreach.
The legislation passed the Judiciary Committee 7-3 on April 4 and moved on to Governmental Oversight and Accountability Committee for further consideration.
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