DES MOINES, Iowa (March 7, 2022) – A bill introduced in the Iowa House would create a process to end state enforcement of a federal executive order or a decision of a federal court. But the legislation needs an amendment to make it effective in practice.

Rep. Skyler Wheeler (R) introduced House File 2423 (HF2423) on Feb. 16. The bill would authorize the general assembly to nullify the enforcement of a federal executive order or a  decision of a federal court by a majority vote of each house. Nullification resolutions would not be subject to signature by the governor.

If both houses pass the nullification resolution, the executive order or judicial decision would be “unenforceable in this state and this state and the citizens of this state shall not recognize or be obligated to abide by the federal executive order or decision of a federal court.”

IN PRACTICE

While HF2423 features a good process and a strong declaration of nullification, it lacks specific language prohibiting enforcement of the EO or judicial decision. To effectively stop enforcement, HF2423 should be amended with language explicitly banning state and local officials from enforcing the nullified EO or judicial decision, and it should also ban the use of state or local resources for such enforcement.

EFFECTIVE

Language banning enforcement of a federal action is a powerful step toward stopping it in its tracks.

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.”

LEGAL BASIS

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.

WHAT’S NEXT

HF2423 was referred to the House State Government Committee. It must pass out with a majority vote in order to continue on in the legislative process.

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