Texas Legislation Would Create a Mechanism to Review and Block Federal Acts as Unconstitutional
By Michael Boldin | Tenth Amendment Center
AUSTIN, Tex. – A bill up for consideration in the Texas legislature would create a mechanism for the state to review and reject any federal order, law, police, rule, mandate or agency regulation that is found to violate the Bill of Rights of the Texas Constitution.
Introduced by Rep. David Simpson (R-Longview), House Bill 1751 (HB1751) would set a formal process for the state to not only stop providing material support for federal acts deemed a constitutional violation, but would also authorize the legislature to “interpose itself between the federal government and persons in this state to oppose the federal government in the execution and enforcement of federal law.”
If passed, the state legislature would be able to declare any federal act to be a violation of Article I of the Texas Constitution, the state’s Bill of Rights, with a two-thirds vote of both chambers. No action would be required from the Governor, fully bypassing what has often been a long and contentious veto override process.
Once such a determination has been made, no state agency, political subdivision or employ may “execute or enforce a provision, penalty, or sanction” provided by any federal act under that determination.
Such a withdrawal of support follows the advice of James Madison, who wrote in Federalist #46 that a “refusal to cooperate with officers of the Union” in multiple states would create “obstructions which the federal government would hardly be willing to encounter.”
“Madison gave us this strategy for individuals and the states at a time when the federal government was tiny in comparison to today,” said Mike Maharrey of the Tenth Amendment Center. “In modern times, as the feds have gotten involved in nearly every facet of our lives, this strategy is even more effective because they simply don’t have manpower to get the job done on their own.”
In a discussion on similarly-based legislation last year, Judge Andrew Napolitano agreed, suggesting that even a single state refusing to enforce a federal act would make it “nearly impossible” to enforce. And in late 2013, the National Governor’s Association noted that the “states are partners with the federal government in most federal programs.”
“A partnership doesn’t work too well with half the team saying no,” said Maharrey. “The feds are going to have an extremely difficult time violating the rights of Texans without the help of the state of Texas.”
By including a provision to authorize the legislature to include ways to interpose between the people of Texas and federal government in a determination of unconstitutionality under the act, the mechanism set by the bill would also allow the state legislature to keep options open beyond such non-participation as advised by Madison.
LEGAL BASIS
Refusing to participate with federal enforcement is not just an effective method, it has also been sanctioned by the Supreme Court in a number of major cases, dating from 1842.
The 1997 case, Printz v. US serves as the cornerstone. In it, Justice Scalia held:
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.
As noted Georgetown Law Constitutional Scholar Randy Barnett has said, “This line of cases is now … considered well settled.”
NEXT STEP
HB1751 will first be assigned to a state House committee, where it will need to pass by a majority vote before the full House can consider it. Supporters are encouraged to contact their Texas state representative today and urge their support of HB1751.