NASHVILLE, Tenn. (Feb 10, 2023) – A pair of bills filed in the Tennessee House and 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 potentially end the enforcement of some federal laws and acts in the Volunteer State.
Rep. Bud Hulsey (R) filed House Bill 726 (HB726) on Jan. 27. Sen. Janice Bowling (R) filed its companion, Senate Bill 1092 (SB1092), on Jan. 31. The legislation, titled the “Restoring State Sovereignty Through Nullification Act,” would create several processes to declare a “federal action” unconstitutional, void and unenforceable in the state of Tennessee.
The bill defined a federal action as “a federal law; a federal agency rule, policy, or standard; an executive order of the president of the United States; an order or decision of a federal court; or the making or enforcing of a treaty.”
Under the proposed law, any state, county, or city agency, officeholder, or employee would be prohibited from assisting in any attempt to enforce such federal action deemed unconstitutional. It would also prohibit the expenditure of any state or local funds collected under the authority of the Constitution of Tennessee to be used to assist in any attempted enforcement of an unconstitutional federal action.
HB726/SB1092 creates five separate ways to determine an unconstitutional federal act and implement the “nullification” process.
- The governor may, by the governor’s own executive authority, issue an executive order nullifying the same, whereby all executive departments of the state are bound by said order.
- Any member of the general assembly may introduce a bill of nullification in the general assembly. For any such proposed bill of nullification, the bill is not subject to debate or passage in committees, and proceeds directly to the floor of each house, where said bill shall, within five (5) legislative days, be scheduled for debate on the floor of each house, and thereafter, within three (3) legislative days after the debate is closed, shall be presented for a roll call vote on each floor. The bill, if passed in the same manner as other general law, has the force and effect of law, and becomes effective immediately upon enactment.
- Any court operating under the authority of the Constitution of Tennessee may render a finding or a holding of nullification in any case of which it otherwise has proper venue and jurisdiction, wherein the parties to said case will, upon final judgment, be bound thereby in the same manner as in other cases.
- Any combination of ten (10) counties and municipalities may, through the action of the executive or through the action of a majority of the governing legislative body, submit a petition of nullification to the speaker of the house of representatives, with a copy to the office of the attorney general and reporter, and upon satisfactory proof that said petitions are valid, the speaker of the house of representatives shall proceed to introduce the bill and follow the same methods and protocols as described in subdivision (2).
- The signed petitions of two thousand (2,000) registered voters of this state may submit a petition of nullification to the speaker of the house of representatives, with a copy to the office of the attorney general and reporter, and upon satisfactory proof that said signatures are valid, the speaker of the house of representatives shall proceed to introduce the bill and follow the same methods and protocols as described in subdivision (2).
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.
HB726 was assigned to the State Government Committee followed by assignment to the Public Service Subcommittee. SB1092 was referred to the Senate State and Local Government Committee. The bills will need to receive a hearing in the respective committees and pass by a majority vote before moving forward in the legislative process.