LA. State Rep. Danny McCormick recently introduced House Bill 617, seeking to have Louisiana designated and declared a “sanctuary” state for fossil fuels in order to protect our oil and gas industry—a critically important part of our state’s economy—that is again under attack, this time by the Biden Administration.
There is certainly precedent for Rep. McCormick’s legislation. We’ve seen sanctuary cities and states across the country, even without enabling legislation like McCormick’s, refuse to help enforce federal immigration law regarding the location and deportation of illegal aliens, often including criminal aliens. So, the idea of a state ignoring federal law is not new.
And, while McCormick’s legislation will face an uphill fight due to the Supremacy Clause of our U.S. Constitution—which essentially declares that federal law trumps state law—that in no way diminishes the principle underscoring the legislation.
We are talking about the principle of state sovereignty. We must remember that our Constitution created and designed our federal government and the 50 state governments to exist as co-equal sovereigns. This principle of state sovereignty is powerfully pronounced and preserved by the 10th Amendment which clearly and succinctly declares that those rights not specifically and expressly enumerated in our Constitution as being granted to the federal government are reserved to and for the states and the people.
Derived from the 10thAmendment, the legal theory upon which the legislation is based is the concept of nullification. This is the process by which a state would nullify or declare null and void a federal law that violates the Constitution. Here, the constitutional violation arguably includes the fact that the oil and gas industry, a major Louisiana industry with tens of thousands of jobs flowing directly and indirectly from it, are the “property” of Louisiana companies and individual citizens that are being deprived “without due process of law.” This also arguably amounts to a 5th Amendment “taking” for a “public use” but “without just compensation.”[We should note that the production of fossil fuels has been attacked relentlessly, worldwide, supposedly to combat the eons-old cyclical warming and cooling of our planet. However, according to Dr. Patrick Moore, a Greenpeace co-founder, “there is nonscientific proof that human emissions of carbon dioxide are the dominant cause of the minor warming of the Earth’s atmosphere over the past 100 years … no actual proof, as it is understood in science, actually exists.”]
McCormick’s legislation, similar to the way sanctuary cities and states have disregarded federal immigration law, would likely work like this: the federal government would obviously still be free to enforce its own anti-oil and gas regulations with its own resources but states like Louisiana could simply say to the feds “we are not going to cooperate in helping you enforce those laws” with our own efforts, funds, assets, or resources. This is because the U.S. Supreme Court has held that, while the federal government may dangle federal dollars in front of states in order to incentivize certain conduct, it may not “commandeer” the states and force them to do so.
It is beyond dispute that the economic impact of federal laws and regulations on Louisiana’s oil and gas industry has been devastating. For this reason, we can and must find a way to balance energy and industry with good environmental stewardship while remembering that the worst environment one can be in is to be cold, hungry, and unemployed.[I am confident that if the Biden Administration also overreaches on other issues like 2nd Amendment gun rights and gun ownership, we will see more states undertake efforts like this one.]
Again, this undertaking will obviously face many obstacles but that doesn’t mean it’s not worth the effort. Our Framers fully recognized that co-equal, shared power between the federal and state governments would necessarily involve tensions and friction, which they viewed as healthy in our system of dual sovereignty.
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