January 28, 2014 by Michael Boldin
With a number of States now consideringbills to thwart the implementation of Obamacare or legislation to turn off resources like water and power to National Security Agency facilities around the country, a number of political commentators are weighing in.
For example, Gail Kerr over at The Tennessean wrote about State Senator Mae Beavers’ bill to block Obamacare: “The U.S. Supreme Court ruled in 2012 that President Barack Obama’s Affordable Care Act is constitutional. State laws cannot trump federal laws.”
Jacob Gershman at the Wall Street Journal’s Law Blog suggested the same before having to retract shortly after.
The knee-jerk reaction of many “experts” is to claim that “Federal laws trump State laws when they conflict” whenever they write about a bill designed to take action against a Federal act.
Many of them don’t have a clue what they’re talking about.
The bills in question are not coming into “conflict” with Federal laws at all; they seek to direct State agents and employees to stop participating in the enforcement of various Federal acts.
In Washington State, for example, House Bill 2272 would ban all public employees from participating in any actions that aid the NSA in its mass surveillance programs. While this would immediately ban the use of warrantless data in court proceedings in the States, it has even more significant impact in a State like Washington, because there is a physical NSA facility there that relies on third parties, such as State agencies, to provide electricity or water to stay operational.
A similar bill has been introduced in Tennessee, where the NSA’s encryption-breaking facility at Oak Ridge resides. And another is expected to be introduced soon in Utah, where the new NSA data center requires as much as 1.7 million gallons of water every day to cool the supercomputers. That water is being supplied by the state of Utah.
In a rallying cry that sounds surprisingly simple, supporters know that no water equals no NSA data center.
Back in Tennessee, Senate Bill 1888 states, in part, “No state entity shall establish or administer, or assist in establishing or administering, any specific regulatory scheme to operate the federal Patient Protection and Affordable Care Act of 2010, or any subsequent federal amendment to such act, in this state.”
Analyzing such state bills, FOX News Senior Judicial Analyst Judge Andrew Napolitano considered them an effective strategy against the Affordable Care Act. “If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources… to go into each of the states if they start refusing,” he said.
In Florida yesterday, a bill was introduced in the State House to ban the entire State from enforcing or assisting in the enforcement of Federal gun control measures — all of them — past, present or future.
Napolitano last year urged States to do just this, suggesting that the Federal government simply does not have the manpower to carry out these measures. Such a bill in a single State, he said, would make “federal gun laws nearly impossible to enforce.”
The Legal Doctrine
Is this legal?
In short, absolutely. The State laws do not come into conflict with Federal laws in any legal sense.
All of these proposals are based on the widely accepted legal principle known as the “anti-commandeering doctrine.”
This means the Federal government cannot require a State to carry out Federal acts. The Federal government can pass a law and try to enforce it, but your State isn’t required to help them.
The Supreme Court has repeatedly affirmed anti-commandeering, relevant court cases being:
- 1842 Prigg: The court held that States weren’t required to enforce Federal slavery laws.
- 1992 New York: The court held that Congress couldn’t require States to enact specified waste disposal regulations.
- 1997 Printz: The court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”
- 2012 Sebelius: The court held that the Federal government could not require the States to expand Medicaid, even under the threat of losing Federal funding.
Constitutional scholar Randy Barnett told National Journal recently: “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”
These noncompliance bills do not run afoul of the Supremacy Clause, even if one were to claim that all Federal laws are supreme, instead of just those made “in pursuance” of the delegated powers in the Constitution.
Claiming they do is like claiming people who are boycotting a business are actually setting fire to it instead of just choosing not to shop there.
It’s just as absurd. Saying no to participation is far different than a physical standoff, both legally and practically.
Can It Work?
Simply put, the Federal government cannot force State or local governments to do the bidding of the Federal government. Such a tactic is an extremely effective way to stop a Federal government busting at the seams.
Even the National Governors Association admitted the same recently when it sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”
That means States can create impediments to enforcing and implementing “most federal programs.”
James Madison, the “Father of the Constitution,” advised this very tactic. Madison supplied the blueprint for resisting Federal power in Federalist No. 46. He outlined several steps that States can take to effectively stop “an unwarrantable measure” or “even a warrantable measure” of the Federal government. Anticipating the anti-commandeering doctrine, Madison called for “refusal to cooperate with officers of the Union” as a method of resistance.
This same process was used effectively by Northern Abolitionists in resistance to the Fugitive Slave Act of 1850. And in Colorado, the whole world is able to see firsthand just how effective the States can be when they refuse to go along with Federal “laws.”
We should follow their courageous path against every other unConstitutional Federal act as well.
Moving forward, burning up the phone lines to your State House and asking legislators to introduce bills to refuse to participate in Federal acts like Obamacare, the NSA or gun control, can turn the tide toward liberty.
Many, if not most, Federal programs rely heavily on this kind of cooperation. Therefore, enacting anti-commandeering laws on various issues around the country can have the effect of a practical nullification — rendering Federal acts “nearly impossible to enforce.”