BISMARCK, N.D. (Feb. 13, 2021) – On Wednesday, the North Dakota House passed a bill that would create a mechanism to review federal actions and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process would set the stage to help end the enforcement of some federal laws and acts in North Dakota.
A coalition of seven Republicans introduced House Bill 1282 (HB1282) on Jan. 11. The legislation would create a process to “nullify” federal laws, rules, or regulations deemed unconstitutional by the state legislature. The bill very specifically defines nullification.
“For purposes of this section, ‘nullify’ means to restrict a state agency or political subdivision of the state or an individual employed by a state agency or political subdivision of the state from enforcing a federal law, regulation, or executive order.”
On Feb. 10, the House passed HB1282 by a 51-43 vote.
HB1282 would establish a “committee on nullification of federal laws.” This committee would have the power to consider whether a federal law, regulation, or executive order is “outside the scope of the powers delegated to the federal government in the Constitution of the United States.” With the committee’s recommendation, the state legislature would be required to consider whether or not to nullify the federal action by passing a concurrent resolution in both chambers. With the passage of the resolution, the state would end enforcement of the federal law, rule, or regulation within the borders of the state.
The passage of HB1282 creates the foundation to nullify federal acts in practice within the state, but the process isn’t actually necessary. The state can choose to end enforcement of any federal law or refuse to cooperate with the implementation of any federal program for any reason. It doesn’t even need this lengthy process to determine constitutionality.
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.”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
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.”
HB1282 will now move to the Senate for further consideration. At the time of this report, it had not been referred to a committee. Once it receives a committee assignment, it must pass by a majority vote before moving forward in the legislative process.
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