AUSTIN, Texas (Sept. 1, 2021) – Today, a Texas law purporting to make the state a “gun sanctuary” goes into effect, but in practice it falls far short of those claims.
A coalition of five Republicans introduced House Bill 2622 (HB2622) on March 17. The new law prohibits any Texas governmental agency, including state and local police departments, from contracting with or in any other manner providing assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if it relates to licensing, registration, firearms confiscation, or background checks that do not exist under the laws of the state of Texas.
However, a loophole in the bill will allow continued support for the enforcement of any future gun control as well – as long as it’s done under existing task force agreements, which virtually every locality in the state already has in place.
“Subsection (b) does not apply to a contract or agreement to provide assistance in the enforcement of a federal statute, order, rule, or regulation in effect on January 19, 2021.”
Gov. Greg Abbott said that signing HB2622 into law would make his state a “2nd Amendment Sanctuary.” However, even without the loophole, the new law doesn’t ban the state from enforcing any existing federal gun control – none. Given the extensive federal gun control already on the books, this new “sanctuary” status looks pretty much like the status quo. The state will continue to cooperate with the enforcement of all federal gun control.
While that can be a good starting point, that doesn’t qualify as a “sanctuary,” not even close.
If the bill results in non-enforcement of some federal action, it would be an effective way to stop some future federal gun control in Texas. The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. 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.”
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 taking this step 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 federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
The state of Texas can legally bar state agents from enforcing federal gun control. 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 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.