BISMARCK, N.D. (April 27, 2021) – On Friday, North Dakota Gov. Doug Burgum signed a bill into law creating a multi-layered mechanism to review some presidential executive orders and potentially end state cooperation with enforcement of those orders determined to violate rights under the U.S. Constitution. But due to layers of bureaucracy in the law, whether the process will actually be used remains to be seen.
A coalition of nine Republicans introduced House Bill 1164 (HB1164) on Jan. 8. The new law revises N.D. Cent. Code § 54-03-32 and requires 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 law, the state, its political subdivisions, and any publicly funded organization will be prohibited from implementing any executive order “if the attorney general issues an opinion that the executive order unconstitutionally restricts a person’s rights or has been found unconstitutional by a court of competent jurisdiction” and the EO relates to one of the following:
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.
HB1164 took a winding path to passage. Initially, Republicans on a House committee neutered the bill so that North Dakota would enforce all executive orders unless a court tells them it is unconstitutional, which is exactly how things are today. The Senate restored the language prohibiting enforcement if the AG determines the EO is unconstitutional. The House did not concur with the amendment, sending HB1164 to a conference committee. The final language hammered out by the committee passed the House 80-12 and cleared the Senate 40-7. With Gov. Burgum’s signature, the law goes into effect Aug. 1.
THE PROCESS IN PRACTICE
The enactment of HB1164 creates a process to potentially push back against overreaching executive authority. Upon the AG’s determination that an EO violates a constitutional right, the state will be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. But in practice, the law will likely have very little if any effect.
In the first place, the law does not require an initial review of any executive order. The language says the Legislative Management “may review.” That leaves it to that body’s discretion. Even if it does initiate a review and send the EO off to the AG, the process then rests in the hands of a politically connected lawyer.
In the second place, this cumbersome review process isn’t even necessary. The legislature already had the authority to review executive orders and prohibit their implementation for any reason whatsoever. In fact, the legislature could simply pass a bill prohibiting state enforcement of specific types of executive orders without any lengthy and unwieldy 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. North Dakota could withdraw state resources from the 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.
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.”