BISMARCK, N.D. (Feb. 8, 2021) – Last week, a Republican-dominated committee in the North Dakota House took a bill to create a process to end state cooperation with the enforcement of presidential executive orders, and amended it so that the state would only opt out of enforcement if a court gives them permission to do so.

A coalition of nine Republicans introduced House Bill 1164 (HB1164) on Jan. 8. As originally introduced, the legislation would have revised N.D. Cent. Code § 54-03-32 and required 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 original proposal, the state, its political subdivisions, and any publicly-funded organization would have been prohibited from implementing any presidential executive order in the following categories that the North Dakota attorney general determined to be unconstitutional during review.

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.

Immediately upon a determination of unconstitutionality by the AG, the state would have been 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 on their own, this would likely have been enough to effectively end the federal action in North Dakota in most situations, nullifying it in practice and effect.

KLEMIN

Although provisions prohibiting a state from enforcing or implementing a federal act rest on a well-established legal principle known as the anti-commandeering doctrine, taking such a step against the Biden administration was a step too far for long-time Republican State Rep. Lawrence Klemin, powerful establishment chair of the House Judiciary Committee.

Last week, Klemin offered an amendment to HB1164, which removed any requirement to end state-level implementation, and replaced it with the following:

Notwithstanding any other provision of law, the state, a political subdivision, or any other publicly funded organization may not implement an executive order that restricts a person’s rights and has been found unconstitutional by a court of competent jurisdiction

The Judiciary committee promptly passed the bill with the Chair’s amendment. The vote was 9-4.

In short, should the bill pass into law, North Dakota will not enforce an executive order unless a court tells them it is unconstitutional, which is exactly how things are today.

“The amendment is a pretty sneaky political trick,” said Mike Maharrey, communications director for the Tenth Amendment Center. “If he wants approval from the courts to end state enforcement of a federal act, he’s already got that from the Supreme Court, and as a lawyer, he knows it. This is just more establishment grandstanding to pretend they’re supporting the Constitution, when passage of this amendment just supports the unconstitutional executive orders of the Biden administration.”

LEGAL BASIS

Based on five major cases dating back to 1842, the anti-commandeering doctrine holds that the federal government cannot force states to help implement or enforce any federal act or program – whether constitutional or not. Printz v. U.S. (1997) 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.”

In Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

WHAT’S NEXT

HB1164 has been placed on the calendar for the full House to consider it. Should it pass the House, opportunities to amend it back to its original state still exist once it gets to the Senate.


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