JEFFERSON CITY, Mo. (Dec. 15, 2021) – A bill prefiled in the Missouri Senate would set the stage to end enforcement of some rules and regulations issued by federal agencies, nullifying them in practice and effect in the state.
Sen. Mike Moon (R-Ash Grove) filed Senate Bill 956 (SB956). The legislation would prohibit any state department or agency from enforcing any rule or regulation promulgated by a federal agency until the Missouri General Assembly approves the rule or regulation. It would also ban state or local enforcement of any rule or regulation promulgated on or after 12 August 28, 2022, in conjunction with the enforcement of any federal regulation unless approved by the Missouri General Assembly.
SB956 creates a process for reviewing all current federal agency rules and regulations.
“Any existing rule or regulation promulgated before August 28, 2020, by any department or agency of this state in conjunction with the enforcement of any rule or regulation promulgated by any federal agency that is in force and effect after August 28, 2022, shall be subject to review by the committee on administrative rules, established under section 536.037. The committee shall determine whether such rule or regulation shall continue to be enforced and shall make a recommendation thereof to the general assembly. The general assembly shall review all rules and regulations referred to it by the committee and shall approve or disapprove the continued enforcement of such rules or regulations.”
Practically speaking, under the proposed law, state agencies would no longer take action to implement or enforce federal agency rules or regulations by default. It would require an act of the legislature before the state cooperated with rules issued by agencies like the EPA, FDA and ATF.
The state would not attempt to block the rules or regulations, but would simply refuse to take any action to implement or enforce them at the state level until the legislature gives approval. This would set the stage to nullify such federal actions in practice and effect.
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.”
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.
“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 Missouri 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. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“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.
SB956 will be officially introduced when the Missouri legislature convenes on Jan. 5. It will need to receive a committee assignment and then a hearing and a vote. It must pass the committee by a majority vote before moving forward in the legislative session.
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