BOISE, Idaho (Jan. 30, 2017) – A bill introduced in the Idaho House would create a mechanism to review federal laws and end state cooperation with enforcement of those that violate the original intent of the U.S. Constitution. This process would set the stage to effectively block some federal laws in Idaho.

The State Affairs Committee introduced House Bill 65 (H65) on Jan. 26. The legislation would authorize the following process to review the constitutionality of federal laws, regulations or court cases.

If a member of the legislature claims any executive order, federal law, federal regulation, federal court or U.S. supreme court decision is not constitutional as compared to the original intent of the United States constitution, legislation may be introduced proclaiming that fact, and if it is enacted into law, such laws, regulations or court cases are hereby declared to be unconstitutional. Such laws, regulations or court cases shall not be recognized by the state of Idaho and are null and void and of no effect in this state.

Under the proposed law, such a finding by the legislature would require the withdraw of all state cooperation in the enforcement or implementation of the law, regulation or court case. It would ban state agencies and departments from establishing any program; promulgating any rule, policy, guideline or plan; or making changes to any program, rule, policy, guideline or plan to implement an unconstitutional act. It would also prohibit the state from accepting or spending funds; or offering guidance, assistance or resources for the enforcement of implementation of such unconstitutional laws, regulations and court cases.

H65 goes even further than similar federal review laws under consideration in other states. It would prohibit state agents from compelling Idahoans to comply with laws deemed unconstitutional by the legislature. There is also a provision designed to protect property in the state.

No judge of an Idaho state court shall issue any order to levy or execute on the property of any Idaho citizen to collect any amounts assessed against such citizen for failure to comply with any provision of the laws, regulations or court cases referenced in subsection (1) of this section.

While these provisions in H65 would not stop state agents from enforcing federal law, regulation or court cases, it would completely stop all state actions related to them. Such a move would essentially nullify them in effect.

Finally, the legislation includes misdemeanor criminal penalties on anybody who violates provisions of the law, including federal agents.


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 laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states. This legislation could effectively end enforcement of federal laws deemed to violate the original intent of the U.S. Constitution. This includes the right to be free from unreasonable searches and seizures and the right to keep and bear arms.

Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement 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.”


This legislation 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.”


The provisions charging federal agents with a crime could create problems. While we might like to see federal agents facing the consequences for violating the constitution, from a practical standpoint, including criminal penalties on federal agents in nullification bills amounts to a legislative poison pill.

And they will never have any practical effect in today’s legal system. You can read more about the problem with prosecuting federal agents HERE.


H65 was referred to the House State Affairs Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey

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