HELENA, Mont. (Oct. 6, 2021) – Last week, a Montana law that would create a mechanism to review presidential executive orders and end state cooperation with enforcement of certain orders determined to violate the U.S. Constitution went into effect. This process sets the stage to possibly nullify some executive orders in effect in Montana, but whether the process will be used remains to be seen.
Sen. Tom McGillvray (R-Billings) introduced Senate Bill 277 (SB277) on Feb. 25. Under the new law, the legislative council may review any executive order issued by the President of the United States, if the order “has not been affirmed by a vote of the Congress of the United States and signed into law, as prescribed by the Constitution of the United States.”
Upon a recommendation by the executive committee, the state attorney general will be required to review the executive order. Under the law, the state, a political subdivision of the state, or an organization receiving public funds from the state, will be prohibited from implementing any executive order that the attorney general determines to be unconstitutional during the review.
The law covers executive orders that relate to any of the following:
- A pandemic or other public health emergency;
- The regulation of natural resources;
- The regulation of the agricultural industry;
- The regulation of land use;
- The regulation of the financial sector through the imposition of environmental, social, or governance standards; or
- Any regulation affecting the constitutional rights of state residents, including but not limited to the right to keep and bear arms.
On April 1, the House passed SB277 by a 59-38 vote. The Senate previously passed SB277 by a 31-19 vote. With Gov. Gianforte’s signature, the law went into effect on Oct. 1.
THE PROCESS IN PRACTICE
The enactment of SB277 creates a process to potentially push back against overreaching executive authority. Upon the AG’s determination that an EO is unconstitutional, 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 council “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. Montana 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.”