By Mike Maharrey
A bill filed in the Missouri Senate would ban state enforcement of any federal rule or regulation without first getting the explicit approval of the state legislature. The enactment of this legislation would set the stage to nullify many federal rules and regulations in practice and effect.
Sen. Mike Moon (R) filed Senate Bill 358 (SB358) on Dec. 12. Under the proposed law, “No department or agency of this state shall enforce any rule or regulation promulgated by any federal agency within the borders of this state unless the enforcement of such regulation is approved by the general assembly.”
The proposed law would create a process for the Committee on Administrative Rules to review existing federal regulations, along with regulations promulgated in the future.
“The general assembly shall review all rules and regulations referred to it by the committee and shall approve or disapprove the continued enforcement of such rules or regulations.”
Significantly, SB358 does not specify any criteria that must be considered in such reviews. The legislature could end the enforcement of any federal rule or regulation for any reason.
The provisions prohibiting the state from enforcing or implementing certain federal acts rests 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.
Ending state and local enforcement of any federal rule or regulation would make it very difficult for the feds to enforce at all in the state 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.
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.”
SB358 will be officially introduced when the Missouri legislature convenes on Jan. 4, 2023. It will need to be assigned to a committee, receive a hearing, and pass the committee by a majority vote before moving forward in the legislative process.