CHEYENNE, Wyo. (March 16, 2021) – A bill introduced in the Wyoming House would create a joint legislative committee that would review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process would set the stage to effectively block some federal laws and acts in Wyoming, but this complicated review process isn’t necessary.
Rep. Robert Wharff (R), along with a coalition of 14Republicans, introduced House Bill 256 (HB256) on March 4. The legislation would create a joint standing committee on federalism that would review the constitutionality of federal actions “that may exceed the enumerated powers in the United States Constitution or that violate the sovereignty of the state or the people.” The committee would “consider the plain language of the United States Constitution and the original intent in making a final declaration of constitutionality.” The bill includes a list of specific federal actions that would fall under the committee’s scope for review.
The committee would refer any federal action determined to be unconstitutional to the full Wyoming legislature for a vote. The state and its political subdivisions would be prohibited from spending public money or resources or incurring public debt to implement or enforce a federal action determined, in the opinion of the legislature by a majority vote (signed by the governor), to be unconstitutional.
HB256 tasks the state attorney general with defending the state to prevent the implementation and enforcement of a federal action declared to be an unconstitutional federal action. This includes prosecution of any person who attempts to enforce such federal action.
In effect, the proposed law would create a process to push back against overreaching federal 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 Wyoming 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.”
But this unwieldy review process isn’t really necessary. The legislature could simply pass a bill prohibiting state enforcement of specific federal acts without any lengthy and cumbersome constitutional review. The state has the right to direct its personnel and resources as it sees fit. It can prohibit the enforcement of federal laws or the implementation of federal programs for any reason at all. Wyoming could withdraw state resources from enforcement of federal acts just because it’s Tuesday and there’s snow on the ground.
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.
HB256 was referred to the House Committee on Corporations, Elections & Political Subdivisions where it must pass by a majority vote before moving forward in the legislative process.