Texas Bill Would Create a Process to Review and Reject Unconstitutional Federal Acts

By: Mike Maharrey

AUSTIN, Texas (Dec 22, 2022) – A bill in the Texas Senate would create a state process to review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process would set the stage to effectively block the enforcement of some federal laws and acts in the Lone Star State.

Sen. Bob Hall (R) filed Senate Bill 313 (SB313) on Dec. 19. The legislation would create the Joint Legislative Committee on Constitutional Enforcement, which would review federal laws, agency rules and regulations, executive orders, federal court decisions, and treaties “that challenge the sovereignty of the state and of the people for the purpose of determining if the federal action is unconstitutional.”

The legislation defines specific criteria by which the committee would review federal acts.

When reviewing a federal action, the committee shall consider the plain reading and reasoning of the text of the United States Constitution and the understood definitions at the time of the framing and construction of the Constitution by our forefathers before making a final declaration of constitutionality.

Under the proposed law, if the committee determines a federal action violates the Constitution, it would then submit it to the Texas Supreme Court for review. If the Texas Supreme Court determines the federal action violates the Constitution, the full House and Senate would then vote on that determination. Passage of the resolution and the governor’s signature would constitute an official determination of unconstitutionality and would prohibit state enforcement of the act.

a) A federal action declared to be an unconstitutional federal action under Section 394.004 has no legal effect in this state and may not be recognized by this state or a political subdivision of this state as having legal effect.

(b) The state and a political subdivision of the state may not spend public money or resources or incur public debt to implement or enforce a federal action declared to be an unconstitutional federal action.

(c) A person authorized to enforce the laws of this state may enforce those laws, including Section 39.03, Penal Code, against a person who attempts to implement or enforce a federal action declared to be an unconstitutional federal action.

EFFECTIVE

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.”

LEGAL BASIS

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.

WHAT’S NEXT

SB313 will be officially introduced when the 2023 session of the Texas legislature kicks off on Jan. 10. At that time, it will receive a committee assignment. It will need to receive a hearing and pass the committee by a majority vote before moving forward in the legislative process.