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Arizona House Approves Bill Blocking Federal ‘Commandeering’

March 6, 2017

Arizona government agencies will be able to refuse to use taxpayer resources in some cases when commanded by the federal government, if a bill passed by the Arizona House in February is approved by the state Senate and signed into law by Gov. Doug Ducey.

Arizona government agencies will be able to refuse to use taxpayer resources in some cases when commanded by the federal government, if a bill passed by the Arizona House in February is approved by the state Senate and signed into law by Gov. Doug Ducey (R).

House Bill 2097 (HB 2097), proposed by state Rep. Bob Thorpe (R-Flagstaff), would block commandeering, which occurs when the federal government requires local or state officials to enact, administer, or enforce federal policies. The bill would allow Arizona governments to refuse to enforce federal rules not created by Congress, including executive orders and federal agencies’ regulations.

HB 2097 was approved by the Arizona House in February, and has been sent to the state Senate for consideration.

States, Not Servants  

Timothy Sandefur, vice president of litigation at the Goldwater Institute and an adjunct scholar with the Cato Institute, says state governments are not obligated to serve the federal government.

“The anti-commandeering principle … is the idea that the federal government has the responsibility to enforce federal laws, and that, while states may assist in doing so, they are not required to,” Sandefur said. “The Supreme Court has endorsed the idea repeatedly, most notably in Printz v. United States. The idea is simple: States are not allowed to obstruct federal laws, but they are also not required to enforce them.”

‘A Bit of Tension’

Sandefur says tension between states and the federal government is a constitutional feature, not a bug.

“Our founding fathers created the federalist structure of the Constitution, purposely putting a bit of tension between the states and the federal government in order to protect individual freedom,” Sandefur said. “I think it’s constitutionally appropriate for people to decline to spend state taxpayer money enforcing federal laws that go beyond Congress’ powers, and I think it’s also financially wise in many cases.”

Laws from Lawmakers Only

Thorpe says his bill is based on constitutional principles.

“It is based upon Article 1, Section 1 of the U.S. Constitution,” Thorpe said. “Only Congress has federal legislative authority. So, if the president legislates through executive orders, or his executive departments legislate through rulemaking, or an activist court legislates from the bench, then Arizona can choose to ignore it.”

HB 2097 preserves the state’s constitutional right to self-governance, Thorpe says.

“The Tenth Amendment is clear that the Constitution limits the federal government to its enumerated authority, and and if an authority is not specifically granted to the national government, it is reserved to the people and states,” Thorpe said. “HB 2097 is a good tool for ensuring the proper balance between federal and state interests and [providing] a safeguard against commandeering.”

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Leo Pusateri writes from Saint Cloud, Minnesota.
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