JUNEAU, Alaska (April 9, 2021) – A bill filed in the Alaska House would prohibit state enforcement of any federal “red-flag” laws, setting the foundation to nullify any such laws in practice and effect.
Rep. David Eastman (R-Wasilla) filed House Bill 152 (HB152) on March 26. The legislation declares that federal red-flag laws would “infringe the resident’s constitutional rights, including the right to keep and bear arms and the right of freedom of speech” and therefore “is unenforceable and of no effect in the state.”
The proposed law would prohibit any Alaska state agency or any political subdivision from accepting any federal grants to implement any federal statute, rule or executive order, federal or state judicial order, or judicial findings that would have the effect of forcing an extreme risk protection order against or upon a citizen of Alaska.
It would also make it a felony offense for any individual, including a law enforcement officer, to enforce a federal red flag law. In effect, this would bar state and local police from enforcing federal red-flag laws.
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 and localities can nullify in effect many federal actions. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Enforcing a red flag law would be no different.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state refusing to cooperate with federal gun control would make federal gun laws “nearly impossible” to enforce.
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in the implementation and enforcement of a federal red flag law, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
The state of Kansas can legally bar state agents from enforcing federal gun control, including red flag laws. Refusal to cooperate with federal enforcement 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. 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 policymaking 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.
HB152 has been referred to the Committee on Community and Regional Affairs, where it will have to pass by a majority vote in order to receive a floor vote.
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