By Mike Maharrey
NASHVILLE, Tenn. (Feb 1, 2016) – A Tennessee bill would require the state to refuse cooperation with federal executive orders or Supreme Court opinions that have not been implemented by the Tennessee General Assembly. It would set the foundation to nullify some federal acts that conflict with state policy.
Sen. Mae Beavers (R-Mt. Juliet) introduced Senate Bill 1790 (SB1790) on Jan. 19. Rep. Mark Pody introduced a House companion bill. (HB1828). Titled the State Sovereignty Reclamation Act of 2016, the bill prohibits the use of state finances or personnel to “enforce, administer, or cooperate with the implementation, regulation, or enforcement of any federal executive order, unless such has been first expressly implemented by the general assembly by law as the public policy of the state.”
The bill places the same prohibition on enforcement of Supreme Court rulings unless the state legislature has implemented them as public policy.
If passed, SB1790 could end state cooperation with a wide range of presidential executive orders and executive branch regulations that are not policy in Tennessee. This could include federal gun control, environmental regulations and OSHA mandates.
If SB1790 passes into law, it will not direct the state to try to actively interfere with the activities of federal agents, instead, it would use the anti-commandeering doctrine to refuse participation.
SB1790 follows the blueprint the “Father of the Constitution” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can nullify in effect many federal actions.
With or without a determination of constitutionality, SB1790 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 The anti-commandeering doctrine rests primarily on four 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.
SB1790 was referred to the Senate Judiciary Committee. HB1828 was referred to the State Government Subcommittee. Both will have to pass by majority vote to move forward.
— Mike Maharrey writes for the 10th Amendment Center.