PHOENIX, Ariz. (Jan. 29, 2023) – A bill introduced in the Arizona House would limit federal control over state and local police.
Rep. Rachel Jones (R) and a coalition of eight fellow Republicans introduced House Bill 2309 (HB2309) on Jan. 18. The legislation would prohibit the state and its political subdivisions from using any personnel or financial resources to enforce, administer or cooperate with any act, law, treaty, order, rule or regulation of the United States government that is inconsistent with any Arizona state law regarding the authority of state and local law enforcement agencies.
Practically speaking, the passage of HB2309 would ensure state and local police remain exclusively under state control. The proposed law would limit the powers of state and local police in Arizona to those provided for in state law, and law enforcement agents would not be able to take on additional powers by virtue of federal law alone. If membership on a joint state/federal task forces involves additional police powers not provided for in state law, Arizona police would be barred from participating with the task force.
Jones said she introduced the bill because local law enforcement agencies shared concerns over the U.S. Department of Justice moving in and taking over their investigations
How this would play out in practice and what specific federal law enforcement powers would be limited by the state remains unclear.
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. This legislation could effectively end enforcement of any federal laws deemed to violate the Constitution.
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.”
The provisions prohibiting the state from enforcing or implementing certain federal acts rest 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.
HB2309 was referred to the House Military Affairs and Public Safety Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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