“We want nullification with teeth!”
The thought of a local sheriff or state police troopers swooping in and arresting federal agents as they violate the Constitution carries great emotional appeal. And as people can easily check whether someone has been arrested or not by visiting a few sites online, it makes it very hard even to deny the arrest or avoid talking about it for too long.
In fact, some activists insist that real nullification legislation must include criminal penalties for feds. They call bills without penalty “teeth” “watered down,” claiming they “don’t really do anything. “ Some groups and individuals will go as far as to actively oppose legislation that fails to direct state law enforcement to arrest federal agents.
But as much as we might like to see our friendly neighborhood ATF agent sitting in the back of a squad car with his hands wrenched behind his back, including criminal penalties on federal agents in nullification bills amounts to a legislative poison pill.
And they will never have any practical effect in today’s legal system.
From a constitutional standpoint, arresting federal agents in the act of exercising undelegated power has legitimacy. As Thomas Jefferson pointed out in the Kentucky Resolutions of 1798, “Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Simply put, feds break the highest law in the land when they try to enforce an unconstitutional act.
In America, lawbreakers face the prospect of criminal prosecution, and it logically follows that the people of the states, who delegated the federal government its powers in the first place, retain the authority to punish those who fail to respect the limits of their power.
Precedent exists for arresting federal agents caught breaking state law in the course enforcing federal acts. We know of at least three cases involving the arrest of federal marshals trying to round up fugitive slaves in northern states during the mid-1800s. Vermont went on to pass a personal liberty law that made any attempt at fugitive slave rendition a kidnapping offense. But despite these bold actions, there exists no record of any state successfully prosecuting a federal agent for simply enforcing a federal act.
In a perfect world, every nullification bill would include penalties on federal agents, and states would vigorously prosecute these oath breakers. But we don’t live in a perfect world.
The Legal Problem
Under federal law, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the structure of the legal system makes it impossible to prosecute a federal agent in state court. Under 28 U.S.C. § 1442(a)(1):
a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
For the sake of example, let’s say Missouri passes a law criminalizing the enforcement of federal gun laws within the borders of the state. Under the law, a county sheriff arrests an ATF agent. Lawyers for the federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1) and the judge would comply. The case just left state hands.
Once in federal court, the game gets played by federal rules.
Generally, federal agents acting within the scope of their duties enjoy sovereign immunity from prosecution. But precedent does allow for state prosecution of federal agents in some situations. To fall under immunity, “a federal officer [must do] no more than is necessary and proper in the performance of his duty.” Clifton v. Cox, 549 F.2d 722, 730 (9th Cir.1977). If the agent can show that he “reasonably believed that his actions were necessary to perform that job and had no motive other than to do his job,” he will fall under immunity in federal court.
In other words, the prosecution would have to prove there was criminal intent outside of enforcing the federal act. In fact, a federal agent once committed burglary while participating in a sting operation. The judge let the agent go because he claimed he committed the crime as part of the undercover operation.
In our hypothetical scenario, the state charged the ATF agent for violating a law prohibiting enforcement of federal gun laws. But clearly, the agent can successfully argue that he was performing actions germane to his job. A state prosecutor may argue that the agent should have known he was violating the Constitution. You and I may believe he should have known he was violating the Constitution. But what we think doesn’t really matter. Only the viewpoint of the federal judge hearing the case matters, and she will certainly dismiss a case involving a federal agent enforcing a federal act.
Simply put, within the American legal system, a federal agent will never face a conviction for enforcing a federal act in a state court. By design, nullification bills including criminal penalties on federal agents throw the game into their arena. The state will not win there. (More on the foolishness of intentionally confronting the feds in federal court HERE.)
If you want to guarantee a bill dies a quick death, include penalties on federal agents. I’ve witnessed this time and time again over the last few years. A piece of legislation can feature nine really strong provisions that the majority of lawmakers in a legislature will get behind, and the bill will never see the light of day because of the penalties.
Not only do the federal penalties make the bill radioactive in the legislature, they also bring media wrath down on the effort. Consider the introduction of an Obamacare nullification bill with penalties in a very conservative state. Instead of focusing the debate on crushing Obamacare – a political winner – the media sets its eyes only on the penalties. They frame the debate around “these extremist measures.” The relentless pounding sways many voters who don’t understand nullification, and they oppose a bill they would otherwise support. It also gives lawmakers cover to reject the bill. They can bow to insurance lobby pressure behind the scenes while claiming they still oppose Obamacare. “I hate federal health care, but I just can’t vote for a bill with these crazy penalties,” they cry.
Here’s a hard truth: at this time, virtually no legislators in the country will support a bill including provisions for the arrest of federal agents. So, why insist on something that you know has zero shot of passage? Outside of Missouri, there exist maybe 10 to 15 legislators in the whole country who will take it on. (And they ultimately weren’t willing to do it in Missouri either.)
Bills with penalties also poison future efforts. During this last legislative session, people regularly confused and associated noncompliance bills with past legislation including penalties on federal agents. A bad bill can kill future efforts in a state legislature for several years, even though the newer legislation contains no such provision. It creates a climate of “guilty by association” opponents of reining in federal power love to exploit.
Contrast this with nullification bills featuring noncompliance provisions. Thanks to the anti-commandeering doctrine, the arguments against states refusing to cooperate with the feds have virtually vanished. By and large, the media accepts it, “legal experts” accept it and lawmakers accept it. Nullification through noncooperation shifts the debate to the issue at hand. Lawmakers can’t hide behind the “I oppose this federal action, but we can’t fight it through this process,” mantra. They must take a position on the issue itself.
And we know noncooperation has tremendous practical effect. The feds rely on state assistance to do virtually everything. Yank that away, and they will find it very difficult to enforce their unconstitutional acts on their own, especially when a number of states act at the same time. As James Madison said, these actions “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.”
While the idea of arresting federal agents might sound exciting and make activists feel like “we are really doing something” – it will not happen – not yet. A federal agent will never face criminal charges for enforcing a federal law in the current climate. Ever. It cannot and will not work because not one state court in the country will try and convict a federal agent – not a single one. They will all cite the Supremacy clause and turn the case over to the feds when asked. And of course, the federal courts will protect their own.
The simple fact is that as things stand today, bills with teeth eat themselves.
The key is in continuing to push noncooperation bills that will pass and will create practical effects, while continuing our work to educate the public on the principles of nullification. If we can change the political climate through education, coupled with tangible legislative success, it will plow the fields for future, more aggressive nullification efforts.