Ammon Bundy and the other ranchers arrested after taking over the Malheur National Wildlife Refuge outside Burns, Oregon, tried to go toe-to-toe with the federal government using raw force and power.
The feds killed one man, and the rest of the ranchers now sit in jail, facing charges under a law passed during the Civil War to punish Confederate sympathizers who attempted to thwart federal activities.
According to the criminal complaint, Bundy and the others took control of federal property and attempted to impede federal agents from doing their jobs. Because they were armed and threatened to resist if the feds tried to remove them from the refuge, they now face charges of “conspiring to prevent federal officers from doing their jobs using threats or intimidation.”
The statute reads:
“If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.”
The law presupposes the legality and legitimacy of every action undertaken by a federal agent. Clearly, this isn’t the case. But what do we do when the federal government usurps power? How do we stop federal agents from enforcing unwarrantable federal acts that rely on powers not delegate by the Constitution? How do we resist unconstitutional acts? Under federal law, impeding a federal official with force or threats constitutes a federal crime. We simply can’t win that way.
In today’s system, everybody assumes that any action taken by the federal government automatically qualifies as legal and legitimate. In the minds of most Americans, every act of Congress, every presidential edict and every federal judicial opinion stands supreme simply by virtue of its existence. Thousands of academics, lawyers and legal scholars will quickly line up to prop up the system, endlessly quoting the “supremacy clause.”
But every law enacted by Congress doesn’t become supreme just by virtue of its passage and a presidential signature. Every presidential utterance doesn’t automatically become the law of the land. And every opinion issued by politically connected lawyers serving on the federal bench doesn’t qualify as “constitutional.” The Constitution’s supremacy clause contains a condition. Legitimate federal laws must be “in pursuance” of the Constitution. Any federal act not in pursuance of the constitution is, as Thomas Jefferson put It, “unauthoritative, void, and of no force.”
Alexander Hamilton summed up this principle succinctly and clearly in Federalist #78.
“There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
The ranchers who took over the Malheur National Wildlife Refuge had a legitimate constitutional claim. The federal government lacks any delegated authority to control large tracts of land within the borders of a state. The Bureau of Land Management operates as an unconstitutional federal agency enforcing unconstitutional federal laws, rules and regulations. Under the constitutional rule of aw, any action the BLM takes counts as “unauthoritative, void, and of no force.” Those attempting to stop these federal actions were technically acting within the rule of law, protecting the highest law of the land.
But no matter how true all of this may be in theory, it really makes no difference in a system run by federal supremacists. The federal government will meet any efforts to constrain its power by force with superior force, using the weight of a legal system most Americans consider legitimate. As Saul Alinsky wrote in Rules for Radicals, “‘Power comes out of the barrel of a gun!’ is an absurd rallying cry when the other side has all the guns.”
Occasionally, state legislators, and more often activists, push for legislation that would subject federal agents to arrest. For example, I’ve seen bills proposed that would impose criminal penalties on any federal agent enforcing certain federal gun laws within a state. While this type of legislation has a certain appeal and stands as constitutionally legitimate, it won’t work in practice. A county sheriff attempting to arrest ATF agents would likely find himself in a jail cell next to Ammon Bundy, facing the exact same charges – or worse – dead. The constitutional legitimacy of his actions will mean nothing in a federal court staffed by federal employees intent on maintaining the federal status quo.
It seems we have only two options – violent revolution, which will fail, or complete submission.
But a third way exists, a moderate middle road between violence and submission – nullification through noncooperation.
We can impede federal actions without using threats or intimidation. We can simply refuse to cooperate with the federal government. This was the blueprint James Madison gave us in Federalist #46.
During the ratification debates, many Americans remained skeptical of the Constitution because they did not believe the federal government would remain limited – as all of the supporters of the Constitution promised it would. They asked a very good question: how will we keep this “limited” federal government in check? This was Madison’s answer.
“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. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]
Notice that the so-called “Father of the Constitution” had no problem with the concept of impeding or obstructing the federal government when it imposes “unwarrantable measures” or even simply unpopular measures. In fact, he encouraged it.That might make him a domestic terrorist in the eyes of federal supremacists today, but it was exactly what the founding generation expected would happen. The states were intended to serve as a check on federal power.
But not through violence or intimidation. Madison said simply refusing to cooperate would be enough to impede or obstruct federal actions.
The federal government depends on state and local cooperation for virtually every action it undertakes. It needs state and local police to enforce federal gun and drug laws. It needs state and local assistance to implement programs such as Obamacare. It needs state and local cooperation to “manage” lands. It lacks the resources to implement all of its laws, rules, regulations and programs alone. Pull the rug of state cooperation out from under their feet and the feds will find themselves impotent. We’ve seen this vividly play out as states have legalized marijuana, effectively nullifying federal prohibition in practice within those states.
During the partial federal government shutdown in 2013, the National Governor’s Association sent out a letter noting “states are partners with the federal government on most federal programs.”
That means by refusing state cooperation, we have within our power the ability to thwart “most federal programs.”
The beauty of this approach lies in the fact that it uses the federal supremacists system against itself. The Supreme Court has consistently held since 1842 that the federal government cannot force states to help implement or enforce any federal act or program.The anti-commandeering doctrine rests primarily on four Supreme Court cases. 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.”
Non-cooperation provides us a moderate middle-road we can follow to impede and obstruct federal actions. At the Tenth Amendment Center, we’ve blazed the trail. Now it’s up to others to follow.
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