DES MOINES, Iowa (Feb. 5, 2018) – Last week, an Iowa subcommittee passed a bill that would nullify federal regulation of purely intrastate commerce.

Sen. Mark Chelgren (R-Ottumwa) introduced Senate Bill 2116 (SF2116) on Jan. 25. Titled the Interstate Commerce Act, the legislation would nullify federal regulation of products held, maintained, or retained within the boundaries of the state that have been produced or manufactured within this state.

“All goods produced or manufactured, whether commercially or privately, within the boundaries of this state that are held, maintained, or retained within the boundaries of this state shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce among the states.”

The proposed law stipulates in order to be covered by the law, products must be stamped “Product of Iowa.”

The law would subject both state and federal agents who try to enforce regulations on such products to criminal penalties.

On Feb. 1, a Senate Judiciary subcommittee recommended passage of SF2116.

The bill is based on the original understanding of the Commerce Clause and the Tenth Amendment. The bill findings summarize the basis of the law.

“The power to regulate intrastate commerce is reserved to the states or the people under the ninth and tenth amendments to the Constitution of the United States. During the constitutional convention, the founders considered a plan which would have authorized the federal government to not only regulate commerce among the several states but also any activity having spillover effects across state lines, and the plan was rejected.”

PRACTICAL EFFECTS

As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statute, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.

But even without the threat of prosecuting federal agents, SF2116 would still make it difficult for the feds to enforce regulations on intrastate commerce in Iowa. The federal government depends on state and local cooperation to implement virtually every federal program and enforce virtually every federal law. The state has every right to prohibit cooperation with the federal government and to prosecute state agents. Without the cooperation of state agents and access to the facilities they operate, federal authorities would have a much more difficult time enforcing federal commerce laws on products made and maintained in Iowa. The threat of arresting federal agents – even absent any real likelihood of prosecution, could also serve as a deterrent.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides a strategy block enforcement of federal regulations within a state because most enforcement actions rely on help, support and leadership from the states.

LEGAL BASIS

Refusal to cooperate with federal enforcement 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. U.S. 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 sovereign.

WHAT’S NEXT

SF2116 will move to the Senate Judiciary Committee for further consideration.

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