A Trend? Multiple States Face Down Unconstitutional Federal Laws and 'Regulations'

P. Gardner Goldsmith | May 7, 2023
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It’s been a long time since collectivists unjustly attempted to portray the idea of federalism and “state rights” as synonymous with racism in contemporary America, and that’s a good thing.

The argument is, of course, ludicrous. But, even if it were valid, the constitutional reality is that the federal government is not explicitly granted many of the so-called “powers” its occupants claim and keep expanding. It also is true that -- as long as they are not prohibited by the U.S. Constitution -- those “powers” not expressly “granted” to the feds are left to the states and the people therein.

And with movements such as the 1996 California attempt to decriminalize medical marijuana, then the state’s 2016 move to decriminalize recreational pot, leftists who previously might have embraced the “federalism-equals-racism” myth have joined libertarians and even some paleo-conservatives to cut the path for wider use of a very important colonial and philosophical principle: nullification.

Now, thanks to the work of the Tenth Amendment Center, we can see the enterprising efforts of people in three states to push back against more than just the federal pot statutes, and, though two of the moves only are in their early stages, they are significant.

First, there’s Montana, and the state’s fully-passed defiance of the U.S. Food and Drug Administration in the form of its expansion of an already standing “Right to Try” statute – an expansion that Governor Greg Gianforte (R) signed on May 3.

Michael Boldin explains, for the Tenth Amendment Center:

“Sen. Kenneth Bogner (R) introduced Senate Bill 422 (SB422) on Feb. 20. The new law expands the Montana Right to Try law that was passed in March 2015. It currently enables terminally ill patients to access medications and treatments that do not have final FDA approval. The enactment of SB422 will expand the law to enable any patient to access medications and treatments not yet given final approval for use by the FDA. SB422 simply removes all patient eligibility requirements from the current law.”

Given the utter travesty visited upon innocent Americans who, if they had been able to access them, might have been saved by the off-label use of medicines – using them as safe therapeutics against a particularly well-known SARS virus -- this is a positive sign. And given how strange it was to see federal officials assiduously avoid mention of the fact that in 2005, the NIH helped publish a study titled, “Chloroquine is a potent inhibitor of SARS coronavirus infection and spread,” some of us have been railing against the Constitution-insulting FDA also insulting our intelligence and rights by stymying those drugs.

In fact, as Robert Higgs, et al, have noted in the book, “Hazardous to Our Health,” the expenses and time-burdens placed on drug-makers can be taken to account for millions of premature deaths due to FDA-created delays in drugs reaching market.

Of course, the consequences of FDA burdens and its institutional corporate favoritism are side-notes to the fundamental problems of its unconstitutionality and its immoral existence through taxation and threats of force. And while Montana’s SB422 does not fully address those two troubles, it is a powerful pushback against FDA claims of so-called “authority” – one that other state legislatures and governors might mimic.

As Michael notes, the Montana statute goes into effect on October 1.

The second of our three state moves towards nullification comes from oil-blessed Texas, which, if its natural resources were unleashed, would be able to expand domestic oil production and refinement to an estimated 10-times greater capacity than what was measured for all the U.S. in 2009.

Michael Boldin separately writes for The Tenth Amendment Center that on May 5, a bill to negate numerous federal environmental lockdowns of Texas oil exploration and recovery passed the House, and now heads to the state Senate.

“Rep. Brooks Landgraf introduced House Bill 33 (HB33) on Feb. 23. The proposed law would prohibit any state agency or its employees from contracting with or providing assistance ‘to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate oil and gas operations’ if it does not exist under the laws of Texas.”

He also notes:

“While the law wouldn’t end all federal regulations on gas and oil production immediately, it would represent a massive shift in strategy going forward. In effect, the bill would do the following.

  1. Ban state and local enforcement of any federal regulation of gas and oil operations on the books that doesn’t have a concurrent measure in Texas state law.
  2. Ban state and local enforcement of any new regulation of gas and oil operations that might come from Washington D.C. in the future that isn’t on the books in Texas.
  3. Shift the focus and attention to oil and gas regulation measures on the books in state law, effectively giving Texas complete control over the regulation of its oil and gas industry.”

And this move has strong legal and philosophical precedent. He adds:

“The state of Texas can legally bar state agents from enforcing EPA regulations, or any other federal law. Refusal to cooperate with federal enforcement 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 is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. (1997) serves as the cornerstone.”

Even if the EPA were constitutional, states still can refuse to enforce federal edicts, and since the EPA has no basis in the enumerated “powers” granted by the Constitution to the feds, the state officials have a sworn duty to not enforce such unconstitutional D.C. commands and “regulations.”

The bill is headed to the Senate.

Likewise, the state of Pennsylvania sees a nascent pushback against the oppressive and offensive Bureau of Alcohol, Tobacco, and Firearms (BATF/ATF) – a bill that only just has been introduced in the state Senate.

Mike Maharrey writes for the Tenth Amendment Center:

“Sen. Doug Mastriano introduced Senate Bill 551 (SB551) on April 19. The legislation declares that a ‘federal action’ relating to a firearm, magazine of a firearm, accessory, and ammunition, intended to restrict possession, transfer, or use of the same ‘shall be unenforcible’ by an official, agent, or employee of Pennsylvania or a political subdivision of the state.”

And this bill does not overlook key “practical” methods that the feds use to expand their oppression and attacks.

Related: CEO Survey Ranks Texas #1 State for Business, California #50 - 9 of 10 Worst Have Dem Governors

Sometimes, state legislators forget that so-called “regulatory” agencies such as the goonish ATF simply will “change meanings” of words, or they will follow unconstitutional “Executive Orders” such as Donald Trump’s “bump-stock ban” or Joe Biden’s so-called “ghost-gun ban” E.O.. But with SB551 Senator Mastriano takes many of these tricks into account.

Writes Maharrey:

“A ‘federal action’ is defined as any of the following issued or enacted by the Federal government:

  1. An executive order.
    (2) An agency order.
    (3) A statute.
    (4) A law.
    (5) A rule.
    (6) A regulation.
    (7) An arbitrary clarification or classification, including any of the following:
    (i) A classification of weapons based on attributes that do not go to primary combustion function of the firearm, such as natural unmodified rate of fire.
    (ii) A classification designed to prohibit possession for nonmechanically necessary attributes, such as bayonet lugs, telescoping stocks, muzzle breaks or other fixtures, pistol grips and pistol braces.
    (iii) A clarification issued through executive or legislative agencies designed to prohibit ownership or possession of firearms based on attributes that are nonmechanically necessary or in common use.”

Those all are important and might be replicated in other states.

Maharrey adds:

“SB551 would specifically prohibit enforcement of a 'federal action' created or taking effect after December 31, 2020, if it 'attempts to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition, or to reclassify the firearm, accessory or magazine ex post facto where the result is to prohibit or restrict continued ownership or common use.'

Under SB551, ‘An attempt by the Federal government to create within this Commonwealth a registry regarding a firearm, component or accessory, ammunition or magazine shall be prohibited.’”

And, get this, the bill would strip “immunity” away from any state agents who participate in these odious activities promulgated by the feds.

“SB551 includes a process to sue state actors who violate the law. It would also bar political subdivisions of the state from receiving grant funds from the state if they adopt a policy in violation of the law.”

As Maharrey notes, the bill currently is in the PA Senate Judiciary Committee. We will see how committee members respond to the bill – and to the calls from constituents to send it to the Senate for a vote.

And we will see how many other states adopt these kinds of beneficial acts of nullification. The principle was at the heart of founding-era federalism, and has been eroded to near impotency. But the times are changing.

And as Americans see more of their rights crushed, so are many views in the populace.

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