OKLAHOMA CITY (Feb. 18, 2016) – An Oklahoma bill that would require legislative approval before a state agency could adopt or enforce any new federal rule or regulation passed out of an important Senate committee Monday. If the bill ultimately passes into law, it will set the stage to nullify such rules and regulations in practice.
Sen. Nathan Dahm (R-Broken Arrow) introduced Senate Bill 1161 (SB1161) on Feb. 1. The legislation would require state agencies to submit any new federal rule or regulation applying to them to the Oklahoma House and Senate before its adoption or implementation. Under the proposed law, the legislature would have the power to disapprove any such federal rule or regulation through passage of a joint resolution.
Under the proposed law, if the legislature disapproves a federal rule or regulation, state agencies would be prohibited from following, interpreting or abiding by it. State non-cooperation would likely make such a federal rule or regulation nearly impossible to enforce, nullifying it in effect.
SB1161 passed the General Government Committee by a vote of 5-3.
The legislation would not attempt to block federal enforcement of its own rules or regulations, but would simply prohibit any state cooperation in enforcement efforts.
SB1161 is similar to a state constitutional amendment approved by Arizona voters in 2014. Proposition 122, enshrined the anti-commandeering doctrine in the state constitution, giving Arizona the ability to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution.” Since passage in Arizona, there has been a notable uptick in the number of bills addressing various federal actions ranging from firearms laws to Obamacare.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effectively method to render federal rules and regulations ineffective because most enforcement actions rely on help, support and leadership from the states. This legislation could effectively end enforcement of EPA rules, executive orders on firearms and other types of agency-issued federal mandates.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on federal gun laws, he noted that a single state taking this 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.”
SB1161 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.”
SB1161 will now move on to the Senate Appropriations Committee where it will have to pass by a majority vote before moving on to the full Senate for consideration.
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