Stop the Left’s Power Grab

Most people assume the federal government has the final say. When Uncle Sam says jump, states and local government simply ask, “How high?”  

The federal government was intended to limit its actions to constitutionally delegated powers and all other authority was left “to the states and the people” per the Tenth Amendment. So, how do we stop it from exercising powers not delegated?

In his blueprint for resisting federal power, Federalist #46, James Madison suggested a number of actions but most significantly, he suggested that a state’s  “refusal to cooperate with officers of the union” would impede federal overreach.  In the Kentucky Resolution of 1799, he wrote that acts of the federal government beyond the scope of its constitutional powers were “unauthoritative, void and of no force.”

Madison’s blueprint, supported by the anti-commandeering doctrine, provides a powerful tool that states can use to stop unconstitutional federal acts in their tracks. 

Anti-commandeering is a longstanding Supreme Court doctrine which, in effect, says that the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort. 

The Supreme Court created the doctrine out of the 10th Amendment and related federalism principles in five landmark decisions dating back to 1842. 

In Prigg v. Pennsylvania, 1842, regarding the Fugitive Slave Act of 1793,  Justice Joseph Story held that the government could not force states could not be compelled to enforce the duties of the federal government nowhere “delegated or entrusted to them by the Constitution.”

In New York v. U.S., 1992, regarding the Low-Level Radioactive Waste Policy Amendment Act of 1985, Justice Sandra O’Connor, wrote that “Congress may not simply commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.  

Printz v. U.S., 1997, serves as the lynchpin for the anti-commandeering doctrine.  At issue was a provision in the Brady Gun Bill that required county law enforcement to administer  part of the background check program.  Citing the New York case, SCOTUS declared this provision unconstitutional, further expanding the reach of the anti-commandeering doctrine.

In Independent Business v. Sebelius, 2012, concerning expansion of Medicaid, SCOTUS held that the legitimacy of Congress’s exercise of the spending power “rests on whether the state voluntarily and knowingly accepts the terms of the contract.”

In Murphy v. NCAA, 2018, SCOTUS held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law.  Justice Samuel Alito wrote, “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.  The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority.”

So, how do we determine what is or isn’t constitutional? The short answer is that it doesn’t matter. Constitutionality isn’t part of the equation. The anti-commandeering doctrine doesn’t depend on a finding of constitutionality. States can refuse to provide personnel or resources for any federal activity regardless of its constitutionality. The utilization of state recourses, funds and personnel are totally at the discretion of the state government.

Big brother relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts.  By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions.

Partnerships don’t work too well when half the team quits.  By withholding all resources and participation in federal law enforcement efforts and program implementation, states, even local governments, can effectively bring any unconstitutional federal action, from gun control to ObamaCare, to FDA mandates to an end.

The future of this country may well depend on the states using anti-commandeering legislation to stop the left’s power grab. We need to do our part by holding our state representatives’ feet to the fire.

Source:  The Anti-Commandeering Doctrine: An Introduction by  Mike Maharrey, Building Blocks for Liberty

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