JEFFERSON CITY, Mo. (Dec. 19, 2016) – A bill prefiled in the Missouri legislature would create a process for the state to refuse to enforce rules and regulations issued by federal agencies, effectively nullifying such rules and regulation in practice within the state.
Rep. Mike Moon (R- Ash Grove) prefiled House Bill 222 (HB222) on Dec. 13. The legislation would require explicit state legislative approval before any state department or agency could enforce any future rule or regulation promulgated by a federal agency. The bill also creates a process for reviewing all current federal agency rules and regulations.
Any existing rule or regulation promulgated before August 28, 2017, by any department or agency of this state in conjunction with the enforcement of any rule or regulation promulgated by any federal agency that is in force and effect after August 28, 2017, shall be subject to review by the committee on administrative rules, established under section 536.037. The committee shall determine whether such rule or regulation shall continue to be enforced and shall make a recommendation thereof to the general assembly. The general assembly shall review all rules and regulations referred to it by the committee and shall approve or disapprove of the continued enforcement of such rules or regulations. No rule or regulation that the general assembly disapproves shall be enforceable unless and until the rule or regulation is again referred to the general assembly by the committee of administrative rules and then approved by the general assembly.
If HB222 passes into law, the state would not take any action to implement or enforce federal agency rules or regulations by default. It would require an act of the legislature before the state cooperated with rules issued by agencies like the EPA, FDA and ATF. The state would not attempt to block the rules or regulations, but would simply refuse to take any action to implement or enforce them at the state level until the legislature gives approval. This would set the stage to nullify such federal actions in effect.
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. 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.”
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on federal gun control, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
HB222 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.”
HB222 will be referred to a committee when the regular session begins in January. It will need to pass out of the committee by a majority vote before moving on to the full House for further consideration.