Tenth Amendment Center: South Carolina Bill Would Create Process to Review Constitutionality of Federal Acts
COLUMBIA, S.C. (Dec. 19, 2017) – A bill prefiled in the South Carolina House would create a joint legislative committee to evaluate the constitutionality of federal laws, setting the stage to take further action to nullify unconstitutional federal acts in effect.
Rep. Gary Smith (R-Greenville) prefiled House Bill 4453 (H.4453) for introduction in the 2018 legislative session. The proposed law would create the Joint Committee on Federalism to evaluate whether or not a federal law is authorized by the Constitution, or if it violates “the principle of federalism.” The bill lays out several specific criteria that would constitute a violation of the principle of federalism.
(1) affecting the distribution of power and responsibility among the state and national government;
(2) limiting the policymaking discretion of the state;
(3) impacting a power or a right reserved to the state or its citizens by the United States Constitution, Amendment IX or X; and
(4) impacting the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare and promote the prosperity of the state’s or political subdivision’s inhabitants.
Under the proposed law, the committee would rely on “the text of the United States Constitution, as amended; the meaning of the text of the United States Constitution, as amended, at the time of its drafting and ratification; and a primary source document that is directly relevant to the drafting, adoption, ratification, or initial implementation of the United States Constitution, as amended; or created by a person directly involved in the drafting, adoption, ratification, or initial implementation of the United States Constitution, as amended.” It could also rely on other “relevant sources,” including federal court decisions, but would not be bound by a holding by a federal court.
When the committee determined a law is not authorized by the Constitution, it would have the authority to request a meeting with members of Congress and the federal governmental entity responsible for adopting or administering the federal law, and to make recommendations to the General Assembly.The committee would be required to file an annual report outlining all of the federal laws it finds are not authorized by the Constitution. It would also be required to post its report on a public website.
IMPACT
Passage of H.4453 would create a platform for nullifying unconstitutional federal actions in effect in South Carolina. Once identified, the legislature could take action and refuse to enforce or implement federal acts not authorized by the Constitution.
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 powerful 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.”
LEGAL LANDSCAPE
Nobody disputes a state’s authority to evaluate the constitutionality of a federal act. There is also a longstanding legal principle affirming that states can refuse to provide personnel or resources for federal purposes. 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 four Supreme Court 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.”
WHAT’S NEXT
H.4463 was referred to the House Judiciary Committee where it will need to pass by a majority vote before moving to the full House.
Mike Maharrey
December 19, 2017 at 03:38PM
