AUGUSTA, Maine (Jan. 17, 2017) – A bill introduced in the Maine House would authorize the legislature to review and reject state regulations adopted to facilitate federal acts.

A coalition of three Democrat representatives introduced House Bill 23 (LD23) on Jan. 10. The legislation would repeal the provision of Maine law that exempts major substantive rules that must be adopted to comply with federal law or to qualify for federal funds from legislative review. This would set the stage to block implementation of such rules in practice.

Under Maine law, the legislature must review any “major substantive rule” issued by a state agency and give final approval before it goes into permanent effect. A major substantive rules meets one of two criteria.

(1) Require the exercise of significant agency discretion or interpretation in drafting; or

(2) Because of their subject matter or anticipated impact, are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government as defined in the Constitution of Maine, Article IX, Section 21, or other serious burdens on the public or units of local government.

After reviewing the rule based on specific criteria, the legislature can authorize final adoption of all or part of the rule, authorize the rule with amendments or disapprove the rule.

Currently, major substantive rules adopted to comply with federal law or regulations or to qualify for federal funds and over the adoption of which the agency exercises no option or discretion are not subject to the legislative review requirement unless they impose requirements or conditions that exceed the federal requirements. Passage of D23 simply repeals this provision. If passed, all such substantive rules would be subject to legislative review. This would set the stage to reject them.

Passage of LD23 would give the legislature control over what state agencies do in relation to federal rules and regulation, and would effectively give Mainers input into the process. As it stands, state agencies in Maine essentially function as an extension of the federal government, promulgating rules for the feds without any oversight or input from the legislature or the people.


Under a legal precedent known as the anti-commandeering doctrine, the federal government cannot force states to help implement or enforce any federal act or program. This means the state of Maine can legally refuse to enact rules, or dedicate resources to enforce federal law or implement federal programs. This legal principle 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.”

If the legislature were to review and reject a rule to enforce federal law implement a federal program, it would stand on solid legal and constitutional footing.


LD23 was referred to the Joint Committee on State and Local Government where it will need to pass by a majority vote before proceeding in the legislative process.

Mike Maharrey

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