by Mike Maharrey March 2021
Stop asking permission where none is required!
I wish I could get this message through to Republican state legislators.
James Madison gave us a blueprint to deal with overreaching federal actions. In Federalist #46, he wrote that when the federal government commits an “unwarrantable” act – in other words unconstitutional – or even a “warrantable” act that happens to be unpopular, “the means of opposition are powerful and at hand.”
And what is the most powerful means of opposition?
“A refusal to cooperate with officers of the union.”
In other words, states should refuse to enforce unwarrantable (or even just unpopular) laws and refuse to implement unwarrantable (or unpopular) federal programs.
If you read Federalist #46 carefully, you will notice the Madison did not suggest asking anybody for permission before refusing to cooperate with the feds. In the words of the old Nike commercials, "Just do it!"
But Republicans seem obsessed with getting permission. They want to create these unwieldy processes to “review” federal actions and declare them unconstitutional before they stop enforcing them. They either want courts or the attorney general to make a ruling and then maybe the governor will stop enforcement – if he wants to.
Last week, the Wyoming Senate took a fantastic bill that would have ended state enforcement of specific federal gun control and changed it into a bill to create a process to review gun control. If it passes, it won’t do a damn thing. You can read more about it HERE.
I can’t emphasize this enough. These dumb processes aren’t necessary.
A state does not need permission or a determination of constitutionality on federal gun control from the attorney general, a court, or anybody else. The legislature can ban enforcement of specific acts anytime it wants for any reason. No determination of constitutionality is necessary. It can ban enforcement of all federal gun control simply because it’s Tuesday and there’s snow on the ground. The Supreme Court agrees.
The courts have already given the states the “permission” they need to opt out of federal enforcement schemes. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842.
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
So, for heaven’s sake Republicans – stop asking permission where none is required!