Tenth Amendment Center, February 9, 2016
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.
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.”
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.