Michigan Bill Would Set Foundation to Nullify Unconstitutional Executive Orders

LANSING, Mich. (Nov. 29, 2016) – A bill introduced in the Michigan House would set the foundation to nullify federal executive orders that are contrary to the Constitution and not explicitly approved by Congress.

Rep. Jim Runestad (R-White Lake) and eleven co-sponsors introduced House Bill 5989 (HB5989) on Oct. 19 to rebuke perceived lawlessness and overreach committed by the executive branch of the federal government. The full text of the bill is as follows:

(1) This state and any political subdivision of this state is prohibited from using any personnel or financial 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 the Congress of the United States and signed into law as prescribed by the constitution of the United States and federal statute.

(2) This state and any political subdivision of this state is prohibited from using any personnel or financial resources to enforce, administer, or cooperate 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 the Congress of the United States and signed into law as prescribed by the constitution of the United States and federal statute.

Because Congress is so ineffectual in their role of checking the president’s power, measures such as HB5989 are vitally necessary for states to keep their sovereignty and independence protected from a heavy-handed executive.

NECESSITY

This measure would nullify in practice the effects of many presidential executive orders and memorandums. Both Pres. Obama and Pres. Bush used these privileges to circumvent Congress and move aendas forward without the proper checks and balances required by the Constitution. But, without state support and resources, federal programs often cannot be effectuated. As the National Governor’s Association noted in a 2013 statement, “states are partners with the federal government on most federal programs.”

“Partnerships rarely work when one side doesn’t participate,” said Michael Boldin of the Tenth Amendment Center. “By prohibiting any action that would give effect to such orders, the state of Missouri will defang their power in practice.”

Obama has already issued more of these commands than any other president in over six decades, a. A USA Today report explains the troubling development:

President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents.

Obama’s executive orders and presidential memoranda have already been used to make policy on issues pertaining to firearms, immigration, energy and labor – with Congress offering little more than lip service as it persists. This creates a void in which the states can push back, as HB5989 does in a lawful manner.

LEGAL BASIS

With or without a determination of constitutionality, HB5989 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 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.”

In addition, HB5989 follows the blueprint that the “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” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.

The state of Michigan now has the opportunity to lead on this important issue, and to become the potential standard bearer for resisting executive orders at the state level.

WHAT’S NEXT

HB5989 has not been referred to a committee at the present time. It must pass through its committee assignment by a majority vote before being considered by the full House.

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From the Tenth Amendment Center Original Story