As of this writing in early May 2022, seldom does a week pass without news of yet another federal rule, regulation, program, action, or decision challenging our freedoms – in violation of the Constitutional separation of powers and the 10th Amendment's explicit limitation on the power of the federal government. How, within the law, to resist this assault on both state sovereignty and individual freedom, has become critical to the future of our Republic.

In a previous article (What Can Be Done, Part 2: States' Rights), we discussed the principle of federalism, and one proven method by which States can assert their sovereignty in opposition to federal laws, regulations, or executive actions. That method is not "nullification," which has been defeated conclusively in many cases throughout the history of the Republic. Under the U.S. Constitution, States cannot prevent federal officers from enforcing federal law within their borders, and they cannot declare federal laws and acts unconstitutional.

Symbolic acts

Well-intended bills like the Texas Sovereignty Act (HB2930/HB1215), which sought in the 2021 legislative session to establish the state's right to determine the constitutionality of a federal law, act, or regulation, are therefore only gestures doomed to failure. That the bill was tabled and never reached the floor in either house of the legislature for a vote shows that this is widely understood. Absent an amendment to the U.S. Constitution, it is not a path worth following. In fact it recalls a popular definition of insanity: "… doing the same thing over and over again, expecting different results."

Governor Abbot did sign a Resolution in 2021 "asserting Texas sovereignty under the 10th Amendment over all powers not granted to the federal government by the U.S. Constitution" and calls for the President & Congress to cease encroaching upon the powers of states. Such resolutions may play well with constituents but has no binding power on anyone. What the 10th Amendment needs is action; and there are actions that can be taken, and are being taken.

Anti-Commandeering Doctrine and its applications

According to this principle – defined and confirmed by the U.S. Supreme Court at least five times from 1842 to 2018 – the federal government cannot compel a State or any of its political subdivisions to enforce a federal law. It cannot deputize, federalize, or conscript State officers to place them under federal command. It cannot use funding to coerce states into enforcing its mandates, except in a very narrow fashion; for instance, when a state refuses to enforce federal marijuana laws, federal funds provided to the state for drug enforcement can be cut, but no other unrelated federal financial assistance to the state can be reduced as punishment or for coercion. The Justices who established and maintained this Doctrine understood very well how the federal government regularly used the power of the purse to compel compliance with its edicts.

Whatever you may think about marijuana prohibition, it is instructive to see how many States have legalized the substance for medical and/or recreational use, while federal laws against it remain in force. The federal laws are simply ignored by officers of the State. Federal agents can still legally enforce federal law, but without state and local law enforcement support, they lack the resources to do so effectively, and they very seldom even try.

Another example is the phenomenon of "sanctuary" cities, counties and states that refuse to enforce federal immigration law. Again, federal agencies cannot be stopped from trying to enforce federal law, but without local support, they cannot do so consistently or effectively.

Since the inauguration of Joe Biden as 46th President of the United States in 2021, several states have applied this doctrine successfully in defense of the Second Amendment to the U.S. Constitution, which prohibits government infringement of our right to keep and bear arms. The various forms of Second Amendment Preservation (or "Protection") Acts that have been signed into law clarify the States' intent not to support or assist enforcement of what they consider unconstitutional infringements by the federal government. Not all these laws are well-written, and not all will withstand a legal challenge, for instance, when they require civil or legal penalties against federal officers enforcing federal law. The States cannot, under the Constitution and settled law, make a determination of unconstitutionality; only federal courts can. Impeding or punishing federal officers in the performance of their duty would be a direct violation of the Supremacy clause of the Constitution. States can, however, deny the use of their own resources to enforce federal law for any reason whatsoever, and that is what they are doing.

Some of the many other actions taken by States since January, 2021 to thwart federal government overreach are these by the very proactive state of Florida:

  • Governor De Santis funded and activated the Florida State Guard, a state military force over which the federal government has no authority or control. This is legal under both the Florida and U.S. Constitutions, as is the case in most of the States, the majority of whom have had active State Guards or State Defense Forces in the last century, and many of whom maintain them today. They are an excellent means for asserting state sovereignty and independence from the federal control and funding that severely limits the utility of the National Guard in service to the States.
  • Florida has acted, both with executive actions and legislation, to oppose federal mask and vaccine mandates within the state. There is a consensus emerging from that fight, and similar actions in many other States, that the federal government has wrongfully attempted to undermine state sovereignty on public health issues.
  • Florida has passed legislation to fill the yawning gaps resulting from the Biden administration's refusal to enforce U.S. immigration law and secure the border. Lawsuits against the federal government are also addressing this problem.

Texas is also at the forefront of the fight against federal overreach and malfeasance, with actions that include:

  • Renewed construction of President Trump's border wall – abandoned by the Biden Administration – with state and private funding.
  • Operation Lone Star, which since March 2021 has addressed the illegal immigration crisis created by the Biden Administration with measures such as:
    • Texas Air and Army National Guard troops deployed in their Title 32 role under state command, in direct support of state law enforcement.
    • Texas Department of Safety (Highway Patrol and other state law enforcement agencies) conducting patrols and apprehensions along the international border.
    • Maritime law enforcement patrols on the Rio Grande.
    • Local law enforcement working closely with state agencies.
    • Anticipating the administration's announced intent to cease Title 42 expulsions of illegal immigrants, the State in April 2022 initiated transportation of migrants to Washington, D.C., additional boat blockades and container blockades to restrict illegal border crossings, and the issue of riot gear to DPS troopers and National Guard soldiers.
    • "Enhanced vehicle inspections" begun at all land ports of entry from Mexico, in direct response to the announced termination of Title 42 expulsions of migrants by the federal government. These thorough inspections of commercial vehicles have resulted in tractor trailers backed up for miles – on the Mexican side of the border, with such severe impact on cross-border trade that three of the four Mexican states sharing a border with Texas have already entered into state-to-state agreements with Texas for enhanced border security in order to gain relief from these delays.

Lawsuits

Lawsuits by States against the federal government were rare before the Clinton administration, but increased steadily through the Bush, Obama, and Trump administrations. When Texas Governor Greg Abbott was the state's attorney during the Obama administration, he famously said, "I go into the office, I sue the federal government and I go home."

Lawsuits against the government are reactive and defensive in nature, seeking usually to stop illegal or unconstitutional federal actions, but not attempting to replace them with programs or actions that are rightly the business of legislatures and governors. Since January 2021, there have been many successful lawsuits against the federal government by individual states and by coalitions of states recognizing their common interest. There are more still in the courts awaiting resolution, and many of these have achieved injunctions against federal action pending a final decision.

A particularly important role that state lawsuits play is to hold the unelected, rule-making federal bureaucracy accountable for its actions.

State Attorneys General increasingly form multistate coalitions to sue the federal government. For example, a coalition of twenty-one states filed a lawsuit against Biden's revocation of the construction permit for the Keystone XL Pipeline. The suit was dismissed in January 2022 after the pipeline construction company cancelled the project. However, 16 of the original states have since appealed to the administration to reverse its decision and license the pipeline due to the rapidly worsening energy crisis. We have not seen the last of action on this issue.

Several multistate lawsuits challenged the administration's 2021 COVID-19 vaccine mandates for health care workers, for private businesses, and for government workers and contractors, leading to injunctions against federal enforcement of these mandates. An emerging consensus in the court system is that health care is the province of the States, not the federal government, and that the mandates were also direct infringements on the rights of individuals to make their own health care decisions.

Pending now is U.S. Supreme Court action that is expected overrule the 1973 Roe v. Wade decision which usurped State authority over abortion law by asserting a non-existent Constitutional right to kill the unborn. Entirely aside from the moral dimension of the issue, this is will be a strong affirmation of the 10th Amendment and its fundamental principle that powers not explicitly granted to the federal government by the Constitution are reserved to the States or to the people.

With gridlock (at best) or one-party dominance of Congress and the executive branch (at worst), all the state actions described here are critical tools in the ongoing fight against federal overreach and expansion of our increasingly unaccountable, authoritarian central government. There is one outstanding question for our Wyoming readership.

Where is Wyoming in this fight?

Our state has joined a few of the coalition legal efforts of 2021, but has neither led nor initiated them. Our participation has suspiciously accelerated as the 2022 elections draw near, in a familiar, pandering fashion. Our legislature finally, in the 2022 session, passed a Second Amendment Protection Act that may be imperfect, but is a substantial step forward and can be improved. Wyoming has done little more, when we should be standing in the front rank alongside states like Florida and Texas.

Cushioned by our circumstances against some of the mounting effects of an unsecured southern border, supply chain problems, looming food shortages, out of control federal spending, polarization and civil unrest, too many of our elected leaders are mired in normalcy bias and lack the courage to act. This needs to end, and whatever else 2022 brings, we need to replace these people or motivate them.