PHOENIX, Ariz. (Jan. 18, 2017) – A bill introduced in the Arizona House would set the stage for the state to refuse cooperation with federal acts.
Introduced by Rep. Bob Thorpe, House Bill 2097 (HB2097) would prohibit state participation or cooperation with any “action” of the United States government that constitutes “commandeering.”
The bill defines “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 proposed law closely mirrors 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.”
HB2097 takes an important step forward, but it has some flaws in its definition of commandeering. Easy technical changes to the bill in committee or on the House floor would give the bill serious immediate impact.
The bill incorrectly defines “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 federal laws or implementation of federal programs. Constitutionality is not relevant to the definition of commandeering. The federal government can commandeer the states for constitutional purposes. The states often voluntarily take these actions, even though they don’t legally have to.
The bill takes a different approach by changing the legal definition of “commandeering.” It defines the it as:
“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.
“This is a confusing approach, at best,” Tenth Amendment Center executive director Michael Boldin said. “But an amendment to the bill, giving a clear and legally-correct definition of commandeering would give the legislation the impact it should have.”
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,” 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.”
Amending HB2097 with the proper definition of commandeering would make it likely to have immediate effect and would set the stage to end cooperation with numerous federal enforcement efforts. As written, the legislation would require some mechanism to determine which acts are “not in pursuance of the constitution” or exceed the powers of Congress.
HB2097 follows 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, HB2097 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 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.”
HB2201 was referred to the Committee on Federalism, Property Rights, and Public Policy, and the Rules Committee. It will need to pass both by a majority vote before moving forward in the legislative process.