Mississippi Bill Would Set Stage to Nullify Some Presidential Executive Orders

Tenth Amendment Center, February 9, 2016

executive-orders-mississippi-020916

JACKSON, Miss. (Feb. 9, 2016) – A Mississippi bill would set the stage to nullify some presidential executive orders and Department of Justice directives to state and local law enforcement agencies.

Sen. Chris McDaniel (R-Ellisville) introduced Senate Bill 2084 (SB2084) on Jan. 26. The legislation would prohibit state agencies, political subdivisions and their employees from utilizing personnel or resources to “enforce, administer or cooperate with an executive order issued by the President of the United States that has not been affirmed by a vote of Congress and signed into law as prescribed by the United States Constitution.”

It would also establish the same prohibition on state cooperation with “a policy directive issued by the United States Department of Justice to law enforcement agencies in this state that has not been affirmed by a vote of Congress and signed into law as prescribed by the United States Constitution.”

It remains unclear how the state would determine if an individual DOJ directive or presidential executive order would be subject to noncooperation under the proposed law. The legislation would likely require further action to implement if passed into law.

SB2084 follows the blueprint “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,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.

Because the federal government depends on state assistance for implementation and enforcement of almost all of its edicts and programs, barring state cooperation of executive orders and DOJ directives would likely make them nearly impossible to enact in Mississippi from a practical standpoint.

LEGAL BASIS

SB2084 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 cases dating back to 1842. Printz v. US 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.”

NEXT STEPS

SB2084 was referred to the Senate Rules committee where it will have to pass by a majority vote before moving on to the full Senate for further consideration.

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Comments

  1. Senator McDaniel has a point. Under the U.S. Constitution states are sovereign and are only subservient to the Federal government on those policies which the states have delegated to Congress as outlined in the Constitution. If there has been no Constitutional delegation by the states, the states that don’t wish to follow Congress’ directives, don’t have to do so. A good example is why Obamacare is failing. The statute provides in large part that the states are required to expand their Medicaid coverage for indigent folks. States like Mississippi filed suit to declare this as being an unconstitutional usurpation of power by the Federal government since this was never delegated by the states. The Supreme Court accordingly held this requirement to be unconstitutional. Sometimes however, the Federal government coerces the states to adopt congressionally imposed mandates–like certain highway and auto emissions bills. If the states assert their 10th Amendment right to resist the Congress can deny the resisting states important highway funding. Therefore, if the bill makes it out of committee, is passed by the Legislature and signed into law by the Governor, it will be interesting to see how it holds up in Court once a case in controversy arises. I am surprised that since Chris is the Chairman of the Constitution Committee, that when he filed the bill, it was not assigned to his committee so that the bill would be assured of a thorough vetting. For everyone who seeks to preserve the sovereignty of our State, or who wish to preserve the principle of federalism which is the key to the success of our secular, democratic republic, this is an important matter.

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