JEFFERSON CITY, Mo. (Dec. 8, 2015) – A bill prefiled for the 2016 legislative session would require the Missouri legislature to review certain federal regulations before they become effective within the state. The bill would set the stage to nullify in practice some federal regulations, but it remains unclear how exactly the law would be effectuated should it pass.

Sen. Mike Parson prefiled Senate Bill 593 (SB593) on Dec. 1. The legislation would require the Missouri general assembly’s approval before any federal regulation “not authorized by federal law” is considered in effect within the state.

“Any regulation that is promulgated by a federal agency and made part of the code of federal regulations, but is not authorized by federal law, shall not be effective within the state of Missouri unless and until the general assembly adopts a concurrent resolution…that authorizes the effectiveness of the regulation within the state.”

Constitutionally, only Congress can pass laws. But federal agencies like the FDA, EPA and OSHA churn out reams of regulations that carry the force of law on their own authority virtually every day. The idea behind HB593 is to empower the Missouri legislature to reject such unconstitutional regulations.

While the legislation is conceptually solid, its actual execution leaves some questions.

First, there exists no mechanism specified in the bill to determine exactly which regulations fall under the category “not authorized by federal law.” The bill leaves open how to determine which federal regulations the Missouri general assembly would consider for authorization or nullification. Some type of process would need to be created to put the idea into practice.

Second, the verbiage “not authorized by federal law” poses a big problem. Congress generally passes open-ended laws that delegate rule-making authority to federal agencies. From a strict constitutional perspective, Congress does not have the authority to delegate its law-making authority to an unaccountable bureaucratic agency. Nevertheless, these agencies will undoubtedly argue that they possess broad latitude to issue regulations some law passed by Congress. Federal Courts would likely back up their claims.

The question comes down to who will ultimately decide exactly which regulations fall under the category of “not authorized by federal law” and how the state will respond to the inevitable challenges.

Despite the problems, SB593 attempts to address a very important issue and could serve as a foundation for a powerful tool to stop federal overreach. Again, the concept is solid; it just needs some refinement to make it workable.

A better approach would be to simply prohibit state participation in the enforcement of any federal regulations without approval of the Missouri general assembly.

Parson and other interested parties should work to solidify SB593 as it goes through the legislative process.

Once the legislative session begins in January, the bill will be assigned to a committee for further consideration.

Mike Maharrey

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