By Mike Maharrey
A bill prefiled in the Texas Senate would prohibit state enforcement of certain federal rules and regulations promulgated under a public health emergency. Implementation of this proposed law would set the stage to nullify such federal rules and regulations in practice and effect.
Sen. Bob Hall (R) filed Senate Bill 307 (SB307) on Dec. 19. The proposed law would prohibit any state agency, political subdivision, law enforcement officer, or other person employed by the state from enforcing or providing assistance to a federal agency in enforcing a federal statute, order, rule, or regulation that is enacted or issued in response to a federally declared public health emergency if it does not exist under state law.
Any political subdivision that knowingly violated the law would be subject to losing state funding.
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 the enforcement of many federal rules and regulations promulgated under a public health emergency.
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.
SB307 will be officially introduced when the 2023 session of the Texas legislature kicks off on Jan. 10. At that time, it will receive a committee assignment. It will need to receive a hearing and pass the committee by a majority vote before moving forward in the legislative process.