PHOENIX, Ariz. (April 22, 2016) – The Arizona Senate killed a bill that would have set the stage for the state to refuse cooperation with federal acts after a bizarre series of parliamentary moves this month.
Rep. Bob Thorpe and a coalition of 12 sponsors and cosponsors introduced House Bill 2201 (HB2201) earlier this year. The legislation would have prohibited state participation or cooperation with any action of the United States government that constitutes “commandeering.” The amended language reads:
“Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, the legislature may enact legislation, with the approval of the governor, that prohibits this state and any county, city or town of this state from using any personnel or financial resources to enforce, administer or cooperate with any action of the united states government that constitutes commandeering.”
In February, the House passed the measure by a 31-27 margin, sending it on to the Senate for consideration.Significantly, a Senate committee amendment to the bill created a mechanism to direct the legislature to consider specific federal acts in order determine if the state should withdraw cooperation.
“The legislature shall consider written complaints received from residents of this state, groups, organizations, businesses or government agencies of this state concerning any suspected commandeering action by the United States government.”
After it successfully moved through the committee process, the Senate narrowly voted HB2201 down 14-15 on April 5. The following day, Sen. Sylvia Allen (R-Snowflake), who voted no, made a motion to reconsider the bill. That motion carried, and the Senate held a second vote on the measure April 13. Allen changed her no vote to yes, but Sen. Bob Worsley (R – Mesa) flipped from the yes column to no. Carlyle Begay (R-Ganedo) did not cast a vote on the the first roll-call on April 5. He voted yes in the second, making the final total 15-15.
The bill defined “action” as “an executive order issued by the president of the United States; a rule, regulation or policy directive issued by an agency of the United States; a ruling issued by a court of the United States; a law or other measure enacted by the Congress of the United States.
The bill defined commandeering as, “any action that either is not in pursuance of the Constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States, or exceeds the powers of the Congress of United States enumerated in the Constitution of the United States.”
The proposed law closely mirrored a state constitutional amendment passed in 2014. The amendment explicitly affirmed the state’s right 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.”
While it would have been an important step forward for the state, HB2201 used a problematic definition of “commandeering.”
Under the long-established anti-commandeering doctrine, supported by four major Supreme Court opinions from 1842 to 2012, the states cannot be required to use personnel or other resources to enforce or effectuate a federal act or regulatory program.
In short, the feds ‘commandeer’ the state when they require it to handle enforcement of any federal laws, something that states get involved in voluntarily all-too-often.
An example of commandeering would be the Department of Homeland Security telling state and local police to enforce federal immigration laws instead of the DHS doing the job itself.
“You don’t see federal agents writing speeding tickets on Arizona highways because those are state laws that the state handles,” Tenth Amendment Center executive director Michael Boldin said. “Turn the tables around and you’ll have clear understanding of anti-commandeering. It’s basically just telling the feds to enforce their own laws themselves. There’s nothing requiring states to pitch in and help.”
The bill takes a different approach and changes the legal definition of “commandeering.”
“COMMANDEERING” INCLUDES ANY ACTION THAT EITHER:
(a) IS NOT IN PURSUANCE OF THE CONSTITUTION OF THE UNITED STATES AND THAT HAS NOT BEEN AFFIRMED BY A VOTE OF THE CONGRESS OF THE UNITED STATES AND SIGNED INTO LAW AS PRESCRIBED BY THE CONSTITUTION OF THE UNITED STATES.
(b) EXCEEDS THE POWERS OF THE CONGRESS OF UNITED STATES ENUMERATED IN THE CONSTITUTION OF THE UNITED STATES.
While HB2201’s definition of commandeering was problematic, the mechanism allowing Arizonans to direct the legislature to examine specific federal acts would still allow the state to effectuate the bill and end cooperation with federal enforcement. Without the amendment, there was really no process to put the proposed law into effect.
HB2201 followed 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” 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.
With or without a determination of constitutionality, HB2201 rested 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.”
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