RICHMOND, Va. (Jan 27, 2016) – A Virginia bill would drastically limit state and local police from assisting in the enforcement of federal rules and regulations not passed by Congress, taking a big step toward nullifying such rules and regulations in effect.

Del. Nicholas J. Freitas (R-Dist. 30) introduced House Bill 763 (HB763) on Jan. 12. The legislation would prohibit local law enforcement or state police “from cooperating with a federal agency through the furnishing of police services for the purpose of enforcing a federal regulation that has not been made law by an act of Congress if the locality or the Department is conducting an active investigation of a violent crime.”

The language provides a small loophole, allowing state and local police agencies to assist in enforcement of federal regulations not passed by Congress if they aren’t currently engaged in the investigation of a violent crime. But from a practical standpoint, this would rarely, if ever, be the case.

If passed into law, HB763 would drastically limit state and local assistance available to the feds to enforce a wide range of rules and regulations, including executive orders relating to firearms, FDA regulations, EPA rules and many others.

The Constitution vests legislative authority in Congress alone. Executive branch agencies cannot constitutionally make rules and regulations by dictate, nor can the president create law via executive orders. Executive branch agencies can only legally enforce laws duly passed by Congress, and the legislative branch has no constitutional authority to delegate its law-making power to the executive branch.

Passage of HB763 would take a big step toward nullifying these rules and regulations in effect.


Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effectively method of blocking agency created rules and regulations because most enforcement actions rely on help, support and leadership from the states.

For instance, Fox News senior judicial analyst Judge Andrew Napolitano noted in a televised discussion on gun control that a single state taking this kind of step would make federal gun laws “nearly impossible” to enforce.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing enforcement help, the states can effectively bring down this kind of unconstitutional rule-making.”


HB763 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 is based 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.”


HB763 was referred to the Committee on Appropriations. It will have to pass out of the committee by a majority vote before moving on to the full House for further consideration.

Mike Maharrey

The 10th Amendment

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