JEFFERSON CITY, Mo. (Feb. 28, 2023) – A bill filed in the Missouri Senate would create a state process to review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process could set the stage to effectively block the enforcement of some federal laws and acts in the Show-Me State.
Sen. Rick Brattin (R) filed Senate Bill 286 (SB286) on Jan. 4. The legislation would authorize the General Assembly and the Attorney General to review and prohibit the implementation of certain federal actions within the state.
The legislation reads:
The general assembly may review any executive order issued by the President of the United States, federal agency rule, or federal congressional action to determine the constitutionality of such action. Upon recommendation from the general assembly, the attorney general shall review such action by the federal government to determine the constitutionality of the action and whether the state should seek an exemption from the application of the action or seek to have the action declared unconstitutional.
SB286 allows for the General Assembly to declare a federal action unconstitutional absent the attorney general with a majority vote of both houses.
Under the proposed law, the state, any political subdivision of the state, or any other publicly funded organization would be prohibited from implementing any action that the attorney general or the general assembly determines to be unconstitutional through this process.
The specific areas that SB286 regulates are as follows:
(1) Pandemics or other health emergencies
(2) The regulation of natural resources, including oil and natural gas
(3) The regulation of the agriculture industry
(4) The use of land
(5) The regulation of the financial sector as it relates to environmental, social, or governance standards
(6) The regulation of the constitutional right to keep and bear arms
(7) The regulation of education
(8) The regulation of interscholastic, intramural, or other extracurricular sports sponsored by an institution of higher education, a school district, or a charter school
(9) Any other powers reserved by the state of Missouri or the people of Missouri.
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.
SB286 was referred to the Senate Governmental Accountability Committee. It will need to receive a hearing and pass the committee by a majority vote before moving forward in the legislative process.
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