ALBANY, N.Y. (Jan. 18, 2023) – A bill introduced in the New York Senate would prohibit the state from assisting the federal government in creating any list or database based on a person’s religion.
A coalition of seven Democrats introduced Senate Bill 115 (S115) on Jan. 4. Titled the New York Religious Freedom Act, the legislation would prohibit any state or local agency and their employees from providing or disclosing to federal government authorities personally identifiable information regarding the religious beliefs, practices, or affiliation of any individual for the purpose of compiling a list registry, or database of individuals based on religious affiliation national origin, or ethnicity. S115 would also prohibit any state or local agency from using money, facilities, property, equipment, or personnel to compile such a list.
The proposed law would not bar state or local agencies from sending or receiving information regarding an individual’s citizenship or immigration status.
The passage of S115 would make it more difficult for the federal government to compile lists based on religious practice and violate the First Amendment.
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.”
State refusal to cooperate with the implementation or enforcement of federal acts is based 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.
S115 was referred to the Senate Codes Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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