By Mike Maharrey
A bill prefiled in the South Carolina House would end state enforcement of all federal acts enacted after Jan. 1, 2021, until they were determined to be constitutional under a review process. This process would set the stage to effectively block the enforcement of some federal laws and acts in the Palmetto State.
A coalition of 22 Republicans filed House Bill 3539 (H3539) on Dec. 15. Under the proposed law, any act, law, treaty, presidential executive order, regulation, rule, or regulatory order issued, adopted, or implemented by the government of the United States on or after January 1, 2021, would be deemed an “unconstitutional federal act” and unenforceable in the state until reviewed under the provisions of this section.
“Notwithstanding another provision of law, no state agency, local government, other political subdivision, or publicly funded organization, or any elected or appointed official or employee of the same, may employ state funds, personnel, or facilities to implement, attempt to implement, or assist in the implementation of an unconstitutional federal order.”
The Legislative Council would have the authority to review any federal act passed on or after Jan. 1, 2021, and would be required to review any such federal act upon the request of the governor or any twenty members of the General Assembly. The Legislative Council would have the authority to then refer any federal act it chooses to the state attorney general “to ascertain its constitutionality, and if constitutional, to determine whether the State should expend funds or personnel to assist in its enforcement.”
The AG would be required to consider whether the federal act infringes on any individual rights guaranteed by the Bill of Rights or any powers reserved to the state under the Tenth Amendment including but not limited to:
- Mandates relating to a pandemic or other public health emergency
- improper interference with the state’s election laws and procedures
- Improper interference with the state’s use and regulation of its natural resources
- Regulation of the agricultural industry
- Regulations of local land use and zoning policies
- The imposition of social policies or governance standards upon state or local governmental bodies or agencies, educational and nonprofit institutions, or industries regulated by the State or operating wholly within its borders.
“If the Attorney General determines that the federal order, or any portion thereof, is constitutional, he shall issue guidance to the applicable state agencies and political subdivisions of the state that expenditure of state resources or state personnel is permitted.”
The General Assembly would have veto power over the AG’s determination.
“If the General Assembly adopts a concurrent resolution rejecting the Attorney General’s finding that a federal order is constitutional, the federal order, or the applicable portion thereof, shall again be designated an “unconstitutional federal order.”
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.
H3539 will be officially introduced when the South Carolina legislative session begins on Jan. 10. The bill will be referred to the Committee on Judiciary where it must receive a hearing and pass by a majority vote before moving forward in the legislative process.