In a recent op-ed, the editorial board of the Wall Street Journal enthusiastically embraced James Madison’s blueprint to deal with overreaching EPA regulations recently unveiled by the Obama administration.

Refuse to cooperate.

This provides yet another indication that the Father of the Constitution’s advice in Federalist #46 – nullification through noncompliance – has gone mainstream.

Last month, a Rasmussen poll indicated that 54 percent of likely voters believe states should ignore federal programs they don’t agree with. The Wall Street Journal agrees and wants states to put the strategy into practice to stop these new EPA regulations.

Writing in Federalist #46 Madison addressed an important question: how do Americans keep a federal government intended to remain limited in check.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.” [Emphasis added]

The “means of opposition” Madison outlines include “a refusal to cooperate with officers of the Union” – the exact strategy recommended by the Wall Street Journal.

“Meantime, states can help the resistance by refusing to participate. The Clean Air Act is a creature of cooperative federalism, and Governors have no obligation to craft a compliance plan. The feds will try to enforce a fallback, but they can’t commandeer the states, and they lack the money, personnel and bandwidth to overcome a broad boycott. Let’s see how much ‘clean power’ the EPA really has.”

Madison said a single state refusing to cooperate would create “very serious impediments.” And when multiple states act together, he said it would pose “obstructions which the federal government would hardly be willing to encounter.”

So, how does this refusal to cooperate actually stop a federal action and nullify it in practice? How does it work?

The Wall Street Journal hit the nail on the head. The feds“lack the money, personnel and bandwidth” to actually enforce their will alone. The Obama EPA plan depends on state cooperation, as described by a Wall Street Journal news story.

“The regulations require states to draft their own plans to reduce power-plant emissions to reach an overall carbon reduction target nationwide. States would have to put in place compliance plans by 2018 and meet their first targets for reductions by 2022.”

So, if the states simply refuse to develop a compliance plan, what happens? Well, the feds will likely try to impose their own plan on reticent states. If enough states refuse to cooperate, that in and of itself will prove a significant challenge for the resource-strapped federal government. And even if they manage to develop such plans, the feds still cannot compel states to enforce them.

As the Wall Street Journal alluded to, the Supreme Court has repeatedly affirmed the anti-commandeering doctrine, holding that the federal government cannot force states to implement or enforce federal acts or regulations. In Independent Business v. Sebelius (2012), one of the four cases underpinning the anti-commandeering doctrine, the Court held that the federal government cannot force the states to act against their will by withholding funds in a coercive manner.

In other words, even if the federal government manages to create compliance plans for every state, the EPA would have to enforce compliance on its own. It can’t depend on state agencies to enforce its regulations, and it can’t threaten to withhold funding to coerce state cooperation.

And according to the Wall Street Journal, even a delay in implementing the new EPA regulations could scuttle the entire Obama plan.

“The White House and EPA know they are distorting the law beyond recognition and that this rule will be litigated for years. But they figure that if they can intimidate the states into enacting as much change as fast as possible, a legal defeat won’t matter because the outcome will be a fait accompli.”

In other words, the feds hope states will quickly cow-tow to the administration and begin putting its plan into place. Once the states cooperate, the program will become virtually set in stone, regardless of future court rulings or congressional action.

States possess tremendous power if they only chose to use it. By simply refusing to cooperate, they can nullify federal actions in practice. The regulations may remain on the books, but they will become unenforceable.

The Wall Street Journal editorial board knows this. Increasingly, the American public knows this. Now it’s up to us to insist that our state governors and legislatures follow through and say, “No!” to the EPA, and for that matter, all federal overreach.

Mike Maharrey

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