NASHVILLE, Tenn. (April 13, 2021) – Last week, the Tennessee House passed a bill to create a process to beg the federal government not to enforce unconstitutional executive orders. While supporters of the bill claim it will help them defend the constitution, passage of this bill will do absolutely nothing of the sort.
Rep. Mark Hall (R-Cleveland) introduced House Bill 1120 (HB1120) on Feb 10. Even as introduced, the language wasn’t particularly strong. It empowered the joint government operations committee of the legislature to review presidential executive orders at its discretion. It could then recommend the state attorney general further review the order. If the AG deemed the order unconstitutional, the bill would have prohibited any state agency, political subdivision, or elected or appointed official or employee of this state, or of a political subdivision from implementing the EO.
This cumbersome review process isn’t even necessary. The legislature already has 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 legal right under the anti-commandeering doctrine 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. Tennessee could withdraw state resources from the enforcement of federal acts just because it’s Tuesday and there’s snow on the ground.
But even this unwieldy process that likely would have never been used was too much for Tennessee Republicans. The House State Government Committee amended the bill and removed provisions ending the implementation of executive orders found unconstitutional by the AG. Under the proposed law as passed by the House, the process would remain in place, but instead of refusing to cooperate with the implementation of an unconstitutional EO, it would beg the federal government to stop it.
“Upon review, the committee may recommend to the attorney general and reporter and the governor that the order be further examined by the attorney general and reporter to determine the constitutionality of the order and to determine whether this state should seek an exemption from the application of the order or seek to have the order declared to be an unconstitutional exercise of legislative authority by the president.“
In other words, Tennessee would beg the feds not to enforce the EO in the state or beg a federal court to declare the order unconstitutional.
In practice, instead of refusing to cooperate with the federal government as James Madison advised, the state of Tennessee will boldly ask the feds to quit it, please.
The Tennessee House passed HB1120 as amended by a 70-23 vote. I’m sure they’ll tell their constituents that they took a strong stand against the feds.
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