JACKSON, Miss. (Jan. 15, 2018) – A bill introduced in the Mississippi Senate would set the foundation to nullify federal executive orders that haven’t been explicitly approved by Congress or that authorize federal actions outside of the powers delegated by the Constitution.
Sen. Michael Watson (R-Pascagoula) introduced Senate Bill 2152 (SB2152) Jan. 9. The legislation would prohibit the state and its political subdivisions “from using any personnel or financial resources to enforce, administer or cooperate with an executive order issued by the President of the United States 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 and which were made in pursuance thereof, this prohibition may be waived on a case-by-case basis by act of the Legislature signed by the Governor.”
It would also establish the same prohibition on state cooperation with “a policy directive issued by the United States Department of Justice to law enforcement agencies in this state that has not been affirmed by a vote of Congress and signed into law as prescribed by the United States Constitution.”
SB2152 follows the blueprint “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,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
Because the federal government depends on state assistance for implementation and enforcement of almost all of its edicts and programs, barring state cooperation of executive orders and DOJ directives would likely make them nearly impossible to enact in Mississippi from a practical standpoint.
This measure would nullify in practice the effects of many presidential executive orders and memorandums. Both Pres. Obama and Pres. Trump have used these privileges to circumvent Congress and move agendas forward without the proper checks and balances required by the Constitution.
But, without state support and resources, federal programs often cannot be effectuated. As the National Governor’s Association noted in a 2013 statement, “states are partners with the federal government on most federal programs.”
“Partnerships rarely work when one side doesn’t participate,” said Michael Boldin of the Tenth Amendment Center. “By prohibiting any action that would give effect to such orders, the state of Missouri will defang their power in practice.”
Obama issued more of these commands than any other president in over six decades, a. A USA Today report explains the troubling development: His executive orders and presidential memoranda were used to make policy on issues pertaining to firearms, immigration, energy and labor – with Congress offering little more than lip service as it persists.
In his first year of office, Pres. Trump issued 55 executive orders ranging from continued sanctions on foreign nations to the creation of new federal offices. Last July Attorney General Jeff Sessions issued a policy directive intended to ramp up federal asset forfeiture, even in states that limit forfeiture.
With or without a determination of constitutionality, SB2152 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.”
The state of Mississippi now has the opportunity to lead on this important issue, and to become the potential standard bearer for resisting executive orders at the state level.
SB2152 has been referred to the Senate Rules Committee, where it must pass by a majority vote before being considered by the full Senate.
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