In 1788, James Madison offered a blueprint for stopping “unwarrantable measures” enacted by the federal government. In Federalist #46, the “Father of the Constitution” advised a refusal to cooperate with officers of the union.” He said even in a single state, this strategy would create “difficulties” and “impediments.” And if several states refused to cooperate at the same time, it would “present obstructions which the federal government would hardly be willing to encounter.”

Interestingly, Madison didn’t limit this strategy to “unwarrantable” or unconstitutional federal actions. He said states should refuse to cooperate with the general government even to stop “a warrantable measure” that happened to be unpopular.

Fifty-four years later, the Supreme Court codified Madison’s strategy into law. In the first of four cases that form the foundation of a legal principle known as the anti-commandeering doctrine, Justice Joseph Story argued that the state and federal government operate in separate spheres. The states cannot obstruct legitimate federal actions, but neither can the federal government force states to do its bidding.

Specifically, in Prigg v. Pennsylvania, Story held that the federal government could not force states to enforce the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it

“The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.” [Emphasis added]

Over the years, the Supreme Court built on the precedent in Prigg and fully developed the anti-commandeering doctrine. The Court has consistently held that the federal government cannot force states to implement federal programs or enforce federal laws – regardless of their constitutionality. The 1996 case Printz v. U.S. serves as the cornerstone of this doctrine.

“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 policymaking 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.”

The anti-commandeering doctrine stands as one of the last bastions of America’s original federated system. The federal government has trampled the sovereignty of the states and morphed into a consolidated national government with virtually unlimited power. It even claims the authority to tell you what kind of lightbulbs you can screw into your fixures. The Supreme Court has largely driven this usurpation of power, but it got one thing right. The anti-commandeering doctrine remains in place and gives states a powerful tool to keep the federal government in check by implementing Madison’s blueprint and refusing to cooperate with its laws, regulations and mandates.

The anti-commandeering doctrine serves as a tool for states to nullify federal acts within the legal system as it operates today. While nullification is a constitutionally legitimate state action, with or without federal approval, having a mechanism in place within the legal system tears down barriers and empowers state legislatures to act. The fact is most state representatives will not defy the Supreme Court. But knowing the Court has approved non-cooperation, they will take action to deny material support and resources to enforce federal law and implement federal programs.

In recent years, states have passed bills based on the anti-commandeering doctrine to block implementation of Obamacare, prohibit enforcement of federal gun control, to legalize hemp and marijuana, to stop cooperation with warrantless federal spying, to give terminally ill patients access to medications not approved by the FDA, to legalize raw milk and expand food freedom, to end enforcement EPA mandates and more.

And yes, to prohibit material support and resources for the enforcement of some federal immigration laws.

The Trump administration has filed suit against the state of California in an effort to end its sanctuary state policies and force it to cooperate with federal immigration enforcement. A lot of people on the right support these efforts.

Meanwhile, the Department of Health and Human Services sent a letter to the Idaho governor and insurance commissioner threatening to take action against the state because of its failure to “substantially enforce” provisions of the Affordable Care Act. A lot of people on the left support these efforts.

So, people on both the left and the right are simultaneously using the anti-commandeering doctrine while supporting federal efforts to unravel it.

The Trump administration lawsuit to force an end to so-called sanctuary policies threatens to undermine or even reverse the anti-commandeering doctrine. If the federal courts decide the federal government can now force states to use their personnel and resources to enforce federal immigration law, it will begin to undo the last remaining legal precedent empowering states to resist federal overreach. If the feds can make California enforce immigration law, it can force Idaho to enforce Obamacare mandates. In fact, it can make state and local governments enforce everything from federal gun control to marijuana laws.

Right-wing support for the sanctuary city lawsuit is short-sighted. While it might serve to advance their immigration policy objectives, is it worth it? Is it worth destroying the last remaining legal check against federal expansion?

Folks on the left should also be careful what they wish for. Efforts to force states like Idaho to enforce Obamacare mandates could also undermine the anti-commandeering doctrine. That would not bode well for the future of sanctuary cities or marijuana legalization.

This illustrates the importance of maintaining constitutional principles over pragmatic partisan politics. You can’t expand federal power when it suits your agenda and then rein it back in whenever you want. Once you expand it, it’s pretty much expanded forever. Either the feds have the power to force cities and states to cooperate, or they don’t. Either the feds can commandeer state resources and personnel or they can’t. You can’t have it both ways.

Mike Maharrey

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