DENVER, Colo. (May 11, 2017) – A Colorado Senate committee killed a bill that would have barred the state from assisting in the enforcement of federal laws that prohibit actions protected by the state constitution.
Rep. Steve Lebsock (D) and Sen. Tim Neville (R) sponsored House Bill 1331 (HB1331). The legislation would have prohibited a state agency from aiding or assisting a federal agency, or an agency of another state, in arresting a Colorado citizen for committing an act that is a Colorado constitutional right; or otherwise violating a Colorado citizen’s state constitutional rights.
As Ryan McMaken reported, the bill was primarily aimed at repudiating the Trump administration’s threat to crack down on states with legalized recreational marijuana. But the scope of the bill could have extended beyond marijuana.
Like most (if not all) state constitutions, the Colorado constitution has its own bill of rights and its own protections for citizens throughout the document. In the Colorado bill of rights, for example, one finds provisions protecting the right “to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness” and “to keep and bear arms in defense of his home, person and property.”
Passage of HB1331 would have potentially prohibited state cooperation with enforcement of a broad range of federal acts that conflict with the state constitution.
Despite passing the House by an overwhelming 58-7 margin, the Republican controlled Senate Judiciary committee killed the bill, voting 5-0 to “indefinitely postpone” it.The committee effectively voted to allow state and local police to continue assisting the federal government in violating Coloradans sate constitutional rights.
This is the second time the Senate Judiciary committee has sided with the feds against Coloradans. It also snuffed out a bill that would have closed an asset forfeiture loophole that allows state and local police to circumvent more stringent state asset forfeiture laws.
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.
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.”
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