By: Mike Maharrey
LITTLE ROCK, Ark. (March 17, 2021) – Yesterday, the Arkansas Senate passed a bill that would create a mechanism to review presidential executive orders and end state cooperation with enforcement of certain EOs determined to violate the U.S. Constitution. This process could set the stage to nullify some executive orders, but without further action, will have no practical impact in the state.
Sen. Trent Garner (R-ElDorado), along with 43 fellow Republicans, introduced Senate Bill 469 (SB469) on March 4. Under the proposed law, the Joint Budget Committee (during the legislative session) or the Legislative Council (during the interim) may “review an executive order issued by the President of the United States that has not been affirmed by a vote of the United States Congress and signed into law as prescribed by the United States Constitution.” The review process is complex and would involve an appropriate standing committee in the legislature along with the state attorney general.
Ultimately, the proposed law would prohibit the state, a political subdivision, or any entity that receives an appropriation of funds from the General Assembly from using state resources and personnel to implement a presidential executive order if there is a determination that EO is unconstitutional, approved by an affirmative vote by the Legislative Council, or the Joint Budget Committee. The governor would then have to direct state agencies to cease implementation of the executive order.
The law would cover federal EOs that relate to any of the following:
- Pandemics or other health emergencies
- The regulation of natural resources, including coal and oil
- The regulation of the agriculture industry
- The use of land
- The regulation of the financial sector as it relates to environmental, social, or governance standards
- The regulation of the constitutional right to bear arms
On March 16, the Senate passed SB469 by a 26-6 vote.
THE PROCESS IN PRACTICE
The enactment of SB469 would create a process to potentially push back against overreaching executive authority. Upon an order by the governor based on a determination of unconstitutionality, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. But in practice, the bill would likely have very little effect.
In the first place, it does not require any review. The language says “may review.” That leaves it to the discretion of the Joint Budget Committee or Legislative Council to take action on a specific EO. The bill doesn’t require them to do anything. Changing “may” to “shall” would ensure that the process is actually used.
In the second place, this cumbersome review process isn’t even necessary. The legislature already has the authority to review executive orders and prohibit their implementation for any reason whatsoever. In fact, the legislature could simply pass a bill prohibiting state enforcement of specific types of executive orders without any lengthy and unwieldy constitutional review. The state has the right to direct its personnel and resources as it sees fit. It can prohibit the enforcement of federal laws or the implementation of federal programs for any reason at all. Arkansas could withdraw state resources from the enforcement of federal acts just because it’s Tuesday and there’s snow on the ground.
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.
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.”
SB469 now moves to the House. It was referred to the House Committee on State Agencies and Government Affairs where it must pass by a majority vote before moving forward in the legislative process.