OKLAHOMA CITY, Okla. (March 3, 2021) – Last Thursday, the Oklahoma House passed a bill that would create a mechanism to review certain federal actions and end state cooperation with enforcement of acts determined to violate the U.S. Constitution. This process would set the stage to nullify some federal actions in effect in Oklahoma.
Rep. Charles McCall (R-Atoka) introduced House Bill 1236 (HB1236) on Feb. 1. Under the proposed law, the legislature would be empowered to review any presidential executive order, federal agency rule, or federal congressional action to determine its constitutionality. Upon recommendation from the legislature, the attorney general would be required to review such action by the federal government to determine the constitutionality of the action and whether the state should seek an exemption from the application of the action or seek to have the action declared unconstitutional. If the AG declines to pursue action, the legislature could still declare a federal action unconstitutional by a majority vote.
The state, its counties, its political subdivisions, and any other publicly funded organization would be prohibited from implementing any action that “restricts a person’s rights” or is deemed unconstitutional by the AG or the legislature.
The law would cover federal acts that relate to any of the following:
- A pandemic or other public health emergency;
- The regulation of natural resources;
- The regulation of the agricultural industry;
- The regulation of land use;
- The regulation of the financial sector through the imposition of environmental, social, or governance standards; or
- The regulation of the constitutional right to keep and bear arms.
- The regulation of education
- The regulation of interscholastic, intramural, or other extracurricular sports sponsored by an institution of higher education, a school district or a charter school
- Any other powers reserved by the State of Oklahoma or the people of Oklahoma
On Feb. 25. the House passed HB1236 by a 79-18 vote.
The enactment of HB1236 wouldn’t have any immediate effect. The legislature would have to take the initiative to review a federal action and the proposed law doesn’t require that. It’s conceivable that HB1236 could become law and there never be any review of any federal act.
Nevertheless, the proposed law would create a process to push back against overreaching executive authority. Immediately upon a determination of unconstitutionality, 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 Oklahoma in most situations, nullifying it in effect.
But this unwieldy process isn’t really necessary. The legislature could simply pass a bill prohibiting state enforcement of specific federal acts without any type of constitutional review.
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.”
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.
HB1236 now moves to the Senate for further consideration. Once it receives a Senate committee assignment, the bill must pass by a majority vote before moving forward in the legislative process.
- Arizona Senate Passes Bill to Legalize Medical Psilocybin Despite Federal Prohibition - March 2, 2024
- Arizona Senate Passes Bill to Establish Bullion Depository and Transactional Gold-Backed Currency - February 29, 2024
- Missouri Bill Would Ban Warrantless Reverse Location Tracking - February 29, 2024