INDIANAPOLIS, Ind. (Jan. 8, 2016) – A bill introduced in the Indiana Senate would empower the state legislature to review federal laws and nullify any that are deemed to violate the Constitution.
Sen. Mike Delph (R-Dist. 29) introduced Senate Bill 288 (SB288) on Jan. 7. The legislation would empower the Indiana state legislature to review any federal law on the basis of its constitutionality.
“A law found by the general assembly to be inconsistent with the power granted to the federal government in the Constitution of the United States is void in Indiana.”
The bill includes felony criminal penalties for any person who knowingly or intentionally implements or enforces a federal law declared void by the general assembly. SB288 would also create a private cause of action for Indianans to halt implementation of such a federal law.
SB288 is based on the principles expressed by the Tenth Amendment, as declared in the text of the bill.
“The Tenth Amendment to the Constitution of the United States defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all powers not delegated to the federal government in the Constitution of the United States are reserved to the states respectively, or to the people themselves.”
SB288 rests on a solid constitutional foundation, but it is difficult to determine how implementation of the law would play out in practice. The federal government would certainly resist efforts to arrest and prosecute its agents. There were several incidents during the fugitive slave era when state officers arrested federal agents, but none were successfully prosecuted.
After the rescue of fugitive slave John Price in Ohio in 1858, a federal grand jury indicted 37 participants in the rescue under the federal Fugitive Slave Act. In response, Ohio authorities arrested the federal marshal who arrested Price, along with his deputies. That led to tense negotiations between Ohio officials and the federal government. The state eventually released the federal agents without trial or punishment. But the federal government also released 35 of the 37 rescuers indicted and arrested.
The aftermath of the Oberlin-Wellington rescue shows how such a confrontational approach can work, but it comes with its own risks.
Indiana could consider another approach. Instead of arresting anybody attempting to enforce a law declared void by the legislature, the state could simply refuse to cooperate with enforcement of such a law. This was the strategy James Madison recommended in Federalist #46. Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can nullify in effect many federal actions.
This approach rests on a rock-solid legal principle repeatedly affirmed by the Supreme Court known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
SB288 was referred to Committee on Public Policy where it will need to pass by a majority vote before moving on to the full Senate for further consideration.
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