REFERENCE TITLE: sovereign authority; commandeering; prohibition; exception

State of Arizona House of Representatives Fifty-third Legislature First Regular Session 2017

HB 2097

Introduced by Representative Thorpe

 

AN ACT

 

amending title 1, chapter 2, article 4, Arizona Revised Statutes, by adding section 1-272; relating to sovereign authority.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 1, chapter 2, article 4, Arizona Revised Statutes, is amended by adding section 1-272, to read:

START_STATUTE1-272.  Sovereign authority; commandeering; prohibition; exception; attorney general; notice; definitions

A.  Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with any action of the United States government that constitutes commandeering.

B.  Notwithstanding subsection A of this section, the legislature may enact legislation, with the approval of the governor, that allows this state and all political subdivisions of this state to use any personnel or financial resources to enforce, administer or cooperate with any action of the United States government that constitutes commandeering.

C.  The attorney general shall annually notify the United States department of justice of this section.

D.  For the purposes of this section:

1.  "Action" includes:

(a)  An executive order issued by the president of the United States.

(b)  A rule, regulation or policy directive issued by an agency of the United States.

(c)  A ruling issued by a court of the United States.

(d)  A law or other measure enacted by the Congress of the United States.

2.  "Commandeering" includes any action that either:

(a)  Is not in pursuance of the Constitution of the United States and 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.

(b)  Exceeds the powers of the Congress of United States enumerated in the Constitution of the United States. END_STATUTE

Sec. 2.  Legislative findings

A.  Article I, section 1, Constitution of the United States, provides that "[a]ll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  No other branch of the federal government has the constitutional authority to legislate.

B.  United States Supreme Court Justice Scalia wrote in his dissent in King v. Burwell (2015) about the "the American people's decision to give Congress '[a]ll legislative Powers' enumerated in the Constitution. Art. I, §1.  They made Congress, not this Court, responsible for both making laws and mending them."

C.  Under the anti-commandeering doctrine, the United States Supreme Court has ruled repeatedly that Congress does not have the authority to force the states, or officials of the states, to do almost anything.  Examples of these rulings include Prigg v. Pennsylvania (1842), New York v. United States (1992), Printz v. United States (1997) and National Federation of Independent Business v. Sebelius (2012).

D.  In his Farewell Address, President George Washington stressed that "it is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.  The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. . . .  The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes.  To preserve them must be as necessary as to institute them.  If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."