BISMARCK, N.D. (Jan. 22, 2021) – A bill introduced in the North Dakota House would create a mechanism to review presidential executive orders and end state cooperation with enforcement of certain orders determined to violate the U.S. Constitution. This process would set the stage to nullify some executive orders in effect in North Dakota.
A coalition of nine Republicans introduced House Bill 1164 (HB1164) on Jan. 8. The legislation would revise N.D. Cent. Code § 54-03-32 and require the state attorney general to review any presidential executive order not affirmed by a Congressional vote on the recommendation of the Legislative Management. Under the law, the state, its political subdivisions, and any publicly funded organization would be prohibited from implementing any executive order that restricts a person’s rights or that the attorney general determines to be unconstitutional during review.
The law would cover executive orders that relate to the following:
a. Pandemics or other health emergencies;
b. The regulation of natural resources, including coal and oil;
c. The regulation of the agriculture industry;
d. The use of land;
e. The regulation of the financial sector as it relates to environmental, social, or governance standards; or
f. The regulation of the constitutional right to keep and bear arms.
Passage of HB1164 would provide a process to push back against overreaching executive authority. Immediately upon a determination of unconstitutionality by the AG, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. Because the feds lack the resources to enforce all of their laws and run all of their programs, this would likely be enough to effectively end the federal action in North Dakota in most situations, nullifying it in effect.
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 effective 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.”
The provisions prohibiting the state from enforcing or implementing certain federal acts 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 – whether constitutional or not. The anti-commandeering doctrine is based primarily on five 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 sovereignty.”
HB1164 was referred to the Joint Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.