By: Mike Maharrey
AUSTIN, Texas (April 19, 2019) – On Wednesday, a Texas House committee held a hearing on a bill that would create a mechanism 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 help end the enforcement of some federal laws and acts in the Lone Star State.
Rep. Cecil Bell (R-Magnolia) and Rep. Rick Miller (R-Sugar Land) filed House Bill 1347 (HB1347) on Feb 4. Titled The Texas Sovereignty Act, the legislation would create a permanent joint legislative committee to review the constitutionality of federal laws, agency rules and regulations, executive orders, federal court decisions, and treaties. The bill includes criteria that the committee must follow when evaluating the constitutionality of an act.
“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, both 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 as follows.
(a) A federal action declared to be an unconstitutional federal action under Section 393.004 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.
On April 17, the House State Affairs Committee held a hearing on HB1347. Tom Glass of Texas Constitutional Enforcement said the hearing went well and sets the stage to pass the bill out of committee. Glass said in a nutshell, “This bill lets Texans run Texas.”
“The Texas Sovereignty Act is mainly about who has the final say on the meaning of the Constitution. He who has the final say is the de facto boss. So, what we are really talking about is who is the boss in our constitutional republic. The framers, of course, intended We the People of Texas to be the boss. And they designed a system in which, you, as our representatives have more say over our day to day lives than a U.S. Congressman. The problem is that even though the Constitution does not say so, the Supreme Court has interpreted the Constitution to say that they are the final interpreters. Not only is that self-serving and circular; it is not what the framers intended or what the Constitution says. This bill makes clear that you, as the representatives of the people of Texas, have the final say on constitutional meaning and that you as our representatives are the boss of the feds, not vice versa.”
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.”
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. 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.”
Passage of HB1347 would provide an expansive toolkit once a federal action has been deemed unconstitutional by the state. Immediately, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. Because the feds lack the resources to enforce all of their laws and run all of their programs, this would likely be enough to effectively end the federal action in Texas in most situations. But in the unlikely event that federal enforcement persists, the legislation would give the state the option of prosecuting federal agents who attempt to implement or enforce a federal action deemed unconstitutional. This would be left to the discretion of the attorney general, prosecutors and law enforcement agencies.
Just because the state could prosecute feds doesn’t mean that such a step would necessarily be the right strategy, and leaving the AG, prosecutors and police prosecutorial discretion, while setting the stage for tougher action, was a good strategic move. As Thomas Jefferson said to James Madison in a letter discussing the Kentucky and Virginia Resolutions, this strategy will “leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”
HB1347 will need to be brought up for a vote in the House State Affairs Committee and pass by a majority vote before moving forward in the legislative process.