AUGUSTA, Maine (April 28, 2017) – Last week, Maine Gov. Paul LePage vetoed a bill that would have required the legislature to review state regulations adopted to facilitate federal acts. Passage would have opened the door to reject federal mandates.
A coalition of three Democrat representatives introduced House Bill 23 (LD23) on Jan. 10. The legislation would have repealed a provision of Maine law that exempts “major substantive rules” that must be adopted to comply with federal law or to qualify for federal funds from legislative review. This would set the stage to reject and block implementation of such rules in practice.
Apparently more concerned about maintaining executive power and protecting state-federal “partnerships” than stopping unconstitutional federal actions, Maine’s Republican governor vetoed LD23, and the majority of Republicans supported him when the House failed to override the veto.
“Under current Maine law, the Executive branch is authorized to work with the Federal government and form cooperative agreements where state agencies get paid by the federal government to implement federal rules and laws. This works well because state agencies have a better understanding about the the needs of Maine citizens and businesses that the federal government. This bill will drastically change the process by stripping this authority from the Executive branch and giving it to the legislature.”
In the first place, LD23 would not have “drastically changed the process.” State executive agencies would have still worked with the feds to forge these “cooperative agreements.” They just would have been subject to legislative approval before final implementation, just like every other substantive executive rule issued by a state agency in Maine.
By maintaining the status quo, LePage will allow state regulatory agencies to continue to function essentially as extensions of the federal government, promulgating rules for the feds in secret without any oversight. LD23 would have given the legislature – the representatives of the people – input into the process. Surely elected representatives understand the needs of their own constituents better than state bureaucrats.
The House voted 77-67 to override the veto, but that fell short of the required 2/3 majority. All but three Republican House members supported the governor’s veto.
THE STATUS QUO
Under Maine law, the legislature must review any “major substantive rule” issued by a state agency and give final approval before it goes into permanent effect. A major substantive rules meets one of two criteria.
(1) Require the exercise of significant agency discretion or interpretation in drafting; or
(2) Because of their subject matter or anticipated impact, are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government as defined in the Constitution of Maine, Article IX, Section 21, or other serious burdens on the public or units of local government.
After reviewing the rule based on specific criteria, the legislature can authorize final adoption of all or part of the rule, authorize the rule with amendments, or disapprove the rule.
Currently, major substantive rules adopted to comply with federal law or regulations, or necessary to qualify for federal funds, and over the adoption of which the agency exercises no option or discretion, are not subject to the legislative review requirement, unless they impose requirements or conditions that exceed the federal requirements. Passage of LD23 would have repealed this provision. Had LePage signed the bill, all such substantive rules would have been subject to legislative review. This would have set the stage to reject them.
As it stands, the state legislature has the final say over all major rules and regulations issued by state agencies except for those imposed by the federal government. The Republican governor of Maine main thinks this is how things should work, but that’s not the system the founders set up, at all.
Under a legal precedent known as the anti-commandeering doctrine, the federal government cannot force states to help implement or enforce any federal act or program. This means the state of Maine can legally refuse to enact rules, or dedicate resources to enforce federal law or implement federal programs. This legal principle 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.”
If the legislature were to review and reject a rule to enforce federal law implement a federal program, it would stand on solid legal and constitutional footing.
Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.