What Can Be Done? - Part 2: States’ Rights Under the Constitution and Court Precedent

What Can Be Done (Part 2): States' Rights Under the Constitution and Court Precedent

Part 1 of this series discussed the unlikelihood of addressing the current crisis through electoral means at the federal level.

Instead, we need to turn to one of the fundamental concepts of the Founding Fathers: federalism. The United States was formed as a union – a federation – of sovereign States. The Declaration of Independence makes this abundantly clear by its structure and grammar: it speaks of the thirteen former colonies as "Free and Independent States", not a single state; and of "united States", where the lack of capitalization signified much. The original Articles of Confederation afforded a much greater degree of sovereignty to the individual States than the Constitution that replaced it, but even throughout the latter document, and especially in its Tenth Amendment, the Founders' intent was clear. That Amendment states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The powers that were reserved to the States have been diminished steadily in practice, especially in the wake of the American Civil War, where the notion that States that voluntarily entered the Union might voluntarily leave it was defeated by force. And yet the Tenth Amendment was never repealed or superseded, and remains part of the supreme law of the land.

Since the late 1860s, there has been a low-key but sustained re-assertion of the rights of States vis-à-vis the federal government. This has taken many forms, and has gained momentum in recent years.

Nullification

This refers to a State "nullifying" a federal law or regulation, essentially declaring it unconstitutional, null and void within the State. This has been argued and attempted many times over the last two and a half centuries, but never successfully. This might be because the cases are all heard by federal judges, who have consistently ruled that only the federal courts can rule on the constitutionality of federal law. They also point to the Constitution's "Supremacy Clause" (Article VI, paragraph 2) which says,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Insanity has been defined as "repeating the same action over and over again, expecting a different result." Although nullification appears unlikely to ever be accepted as legal and permissible, that has not stopped it being tried… over and over again.

One definitive example was early on, in 1809, when Pennsylvania "nullified" a federal court decision and called out the state militia to prevent enforcement of a U.S. Supreme Court decision. The U.S. Marshal raised a posse, carried out the Court's order, and arrested the leaders of the state militia. Pennsylvania appealed to other states for support; eleven states disapproved of Pennsylvania's action, and none supported it. In the streets, by force, as well as in the courts, nullification has been consistently defeated.

Repeated challenges, however, did eventually point toward an alternative which has emerged as a powerful tool against federal overreach. The federal Embargo Act of 1807 restricted foreign trade. New England states objected because of the impact on their economies. Several of these states argued that the Embargo Act was unconstitutional, but while none attempted to fight the Supremacy Clause and ban enforcement of the Act within their borders, Connecticut declared that state officials would not "assist, or concur in giving effect to the aforesaid unconstitutional act."

A later example (which also helps to defeat the slander that associates "states' rights" with slavery and secession) arose again in Pennsylvania, where Quakers and other abolitionists succeeded in passing a state law that directly contradicted and nullified the fugitive slave clause of the Constitution and the federal Fugitive Slave Act of 1793. In 1842, the Supreme Court rejected the Pennsylvania law in favor of the Constitution. However, in that same decision, the Court also implied that states could pass laws denying the assistance of state officials in enforcement of the Fugitive Slave Act, leaving enforcement to federal officials.

Anti-Commandeering Doctrine

That 1842 Supreme Court case was the inception of the Anti-Commandeering Doctrine, holding that the federal government could not force States to implement or carry out the Fugitive Slave Act – or any federal law, rule, or regulation. Much later, in 1992, 1997, 2012, and 2018, successive Supreme Court decisions further defined and strengthened this doctrine, which now includes these key provisions:

• The federal government cannot directly compel a State or its political subdivisions (for instance, a city police department) to enact and enforce a federal law or regulatory program. You will note that when rioters targeted a federal court house in Portland, Oregon in 2020, local police – already over-stretched – did not respond. The federal statutes protecting federal property and operations were enforced by federal officers.
• The federal government cannot circumvent the above provision by conscripting state officers (i.e., placing them under federal control).
• The federal government cannot use funding to coerce States to take a desired action. It can withhold funding directly related to any action the State refuses to take, but with significant limitations. For instance, if the State refuses to enforce federal marijuana laws, the feds may cut some funding related to drug enforcement, but cannot cut unrelated funding in order to punish the State for its stance.

Notably, Anti-Commandeering Doctrine does not involve any test of constitutionality. States can refuse to provide personnel, resources, or support for any federal activity. For example, Wyoming Game and Fish officers are not obliged to enforce or assist in the enforcement of federal wildlife regulations; if their chain of command – which of course ends with the Governor – orders it, then they will; but state authorities could decline to offer that support.

This matters because of how heavily the federal government relies on State cooperation for the enforcement of most of its laws, regulations, and acts. By denying this cooperation, States can make these effectively unenforceable: nullification in all but name.

Another example specific to Wyoming was House Bill 104, introduced in the 2013 legislative session. In its original form, it denied State assistance in the enforcement of federal laws, rules, and regulations concerning firearms. This denial was entirely within the boundaries of Anti-Commandeering Doctrine. However, it ultimately failed to pass, after it was amended to criminalize such enforcement by anyone within the borders of the state. This went far beyond Anti-Commandeering Doctrine, and was in direct violation of the U.S. Constitution's Supremacy Clause. States cannot prohibit federal officers from enforcing federal law – and from a practical standpoint, directing Wyoming law enforcement officers to arrest federal officers for performing their duty was not only illegal, but unrealistic, and guaranteed the defeat of the bill by ignoring the longstanding relationships and mutual trust within the law enforcement community at all levels.

Had HB 104 remained in its original form – or had 2021's Second Amendment Preservation Act reached a floor vote in its original or first-amended form – either could well have passed. All they would have required was for State agencies and officers to decline assistance to federal entities. Federal law enforcement agencies are so thin on the ground, in Wyoming and throughout the United States, that they cannot generally provide transportation, booking, detention or tactical support functions like perimeter control, communications, and air support without state and local cooperation. State action in accord with Anti-Commandeering Doctrine has the potential of stoping all but the most minor or the most major federal actions – and major actions could be conducted in only one or at most two locations in the United States concurrently.

To illustrate the last point, the Waco, TX raid on the Branch Davidian compound in 1993 required the full tactical capability of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). SWAT-qualified agents were recruited from every BATFE field office in the nation; assembled, trained and rehearsed for a period of weeks. The BATFE had minimal capability anywhere else in the nation during that time. They also required military training, advisors, and support, and extensive local law enforcement support. After the debacle of the initial raid, the ongoing siege of the Branch Davidian compound was undertaken by the FBI, through a nearly full commitment of its Critical Incident Response Group and its primary tactical arm, the Hostage Rescue Team. While those resources were committed in Waco, the federal government had no equivalent capability to respond to any other serious security or terrorism threat that might have arisen, without resorting to military units whose authority and jurisdiction in domestic law enforcement – and training and readiness for swift deployment in a civilian environment – was very constrained.

As another example, it has been calculated that if the federal government chose to enforce federal marijuana laws now widely ignored by States, it would take 40% of the DEA's yearly budget to investigate and raid all of the marijuana dispensaries in Los Angeles, California alone.

Finally and very topically, the Biden Administration vaccine mandates and anticipated vaccine passports are examples of federal rulemaking that States cannot be compelled to enforce.

Deny assistance under the Anti-Commandeering Doctrine, and federal ability to enforce its laws and regulations is extremely limited. The federal government may have to learn the wisdom of Napoleon's axiom:

"One should never forbid what one lacks the power to prevent."

Reducing Dependence on Federal Assistance

Federal financial leverage over the States is often considered to be the 'weapon' that would be employed in the face of widespread State resistance to federal mandates. As we pointed out earlier, Anti-Commandeering Doctrine limits the ability of the federal government to punish States by withholding funds. To the extent they do manage, within the law, to pursue this strategy, States must be prepared to tighten their belts if federal funds are withheld. Under the established rules of Anti-Commandeering Doctrine, such defunding should be limited.

States must also begin to wean themselves from reliance on federal funding for ongoing programs, such as education; and emergency or intermittent needs, such as natural disaster assistance. This may not be easy – but if it is the cost of removing federal control and influence in areas they should not be meddling in, it's a reasonable price to pay.

Does the federal government have recourse – persuasive or punitive – against States that exploit the Anti-Commandeering Doctrine, or wean themselves from the federal control that is tied to federal funding? Of course. The States' unfortunate reliance on federal funding for so many of their functions and programs means that resistance will entail sacrifice. The extent to which States succumb to this pressure, and retreat from exerting their rights and their citizens' rights will be the extent to which they forget or ignore Thomas Paine's advice:

"What we obtain too cheap, we esteem too lightly: it is dearness that gives everything its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated."

In Part 3 of this series, we will discuss other powers reserved to the States. All have a cost, and the cost will have to be borne, by comparing it to the cost of inaction and acquiescence.