KNOXVILLE, Tenn. (Dec. 21, 2015) – A new law now on the books in Tennessee effectively nullifies a federal ban on killing black vultures.

Sen. Frank Niceley (R-Strawberry Plains) and Rep. Kelly Keisling (R-Byrdstown) sponsored legislation that repealed a state law prohibiting the killing of these federally protected birds.

Black vultures remain protected under federal law, but repeal of the state law will make it extremely difficult for the federal government to enforce its laws protecting the birds.

Gov. Bill Haslam signed the bill last April. It not only makes it legal to kill black vultures under Tennessee state law, it also prohibits the state from providing any cooperation with federal enforcement of its law.

“No state funds or personnel, or other state resources, may be used to enforce any prohibition against the disturbance of the habitat of, alteration, taking, attempting to take, possession, or transporting of a black vulture.”

The vulture issue came up because these federally protected birds were killing farm livestock and damaging property. According to an article in the Tennessean, Tennessee Cattlemen’s Association executive vice president Charles Hord testified in a Senate committee hearing, describing how the vultures are killing newborn calves across the state. Sen. Paul Bailey also displayed photographs showing buzzard damage at a Jackson County home totaling more than $25,000.

By removing one level of law, the Tennessee legislature made it much less likely that Tennesseans will face prosecution for protecting their livestock or property from these destructive birds. And because the federal government depends on state cooperation to enforce virtually all of its laws and regulations, the new Tennessee statute will likely have the effect of nullifying the federal law against killing black vultures in practice.

In a similar way, the repeal of state laws banning hemp cultivation led to the harvest of industrial hemp crops in states like Colorado and Vermont despite continuing federal prohibition. When states legalize an activity, people are much more likely to simply ignore federal prohibitions because of the lack of effective enforcement without state cooperation.

The new Tennessee vulture law follows the blueprint the “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.


The vulture law rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program The anti-commandeering doctrine rests primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

Mike Maharrey

The 10th Amendment

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