PHOENIX, Ariz. (Jan. 19, 2017) – An Arizona bill that would set the stage for the state to refuse cooperation with federal acts passed out of an important House committee on Tuesday.
Introduced by Rep. Bob Thorpe, House Bill 2097 (HB2097) would set the stage to prohibit state participation or cooperation with any “action” of the United States government that constitutes “commandeering,” and create an effective method to block federal programs in practice and effect.
The House Committee on Federalism, Property Rights and Public Policy passed an amended version of HB2097 by a 7-2 vote.
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 amendment streamlined the bill language. As passed by committee, the HB2097 authorizes the state legislature to prohibit cooperation with “commandeering” acts.
“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.“
It also establishes a process by which the public can bring federal acts before the legislature for evaluation and possible withdrawal of state cooperation.
“The legislature shall consider written complaints received from residents, groups, organizations, businesses or government agencies of this state concerning any suspected commandeering action by the United States government.”
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.”
While different than how federal courts have defined the word under the long-established anti-commandeering doctrine, the bill defines “commandeering” as:
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.
In short, should it be determined that a federal program was being implemented by unilateral agency rule or outside the scope of the enumerated powers of the Constitution, it would trigger the authority to withdraw support and resources from implementation of that program.
This process could start with something as simple as a written complaint by a local resident, group, business or other entity. The legislature would then need to consider the validity of the compliant and take action in response. Residents of Arizona could, for example, submit written complaints about the National Firearms Act of 1934, the EPA Clean Power Plan, the Controlled Substances Act of 1970 and its impact on the state’s medical marijuana program, and more.
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.
The bill 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 now moves to the Rules Committee for further consideration. It must pass by a majority vote before moving to the Committee of the Whole.
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