A few weeks ago, Utahns joined the ranks of Americans telling the federal government to kick sand. The move is less dramatic than the ongoing confrontation in Texas, where state officials are essentially implementing their own international border enforcement policies, but it is also more clearly based in law. The state’s provocative move is an example of the kind of local conflict with the highest levels of government that has become common in recent years and will likely define America’s fraught politics in times to come.
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States against the Fed
“The balance of power between state and federal sovereignty is an essential part of our constitutional system,” Gov. Spencer Cox commented in January after signing the Utah Constitutional Sovereignty Act. “This legislation gives us another way to push back against excessive federal intervention and maintaining that balance.”
That law states: “The Legislature may, by concurrent resolution, prohibit a government official from enforcing or assisting in implementing a federal directive within the State if the Legislature determines that the federal directive violates the Principles of state sovereignty” with “government official” defined as “an individual elected to a position in state or local government.”
Basically, the law says that if Utah doesn’t like a federal law, the feds will have to enforce it themselves.
“This sends the message, and the Utah Legislature is notorious for sending messages like this, that they are not happy with the federal government,” Robert Keiter of the University of Utah’s S.J. Quinney College of Law told CNN. “(And he is) expressing it in a way that is constitutionally problematic.”
Keiter refers to the Supremacy Clause of the Constitution, which states that federal law “shall be the supreme law of the land; and the judges of every State shall be bound thereunder.” This settles the matter, he claims. But is not so.
The feds cannot request state assistance
“Under Printz AND New York v. United States It is well known that the federal government cannot force state officials to implement federal laws,” Jonathan Adler of Case Western Reserve University School of Law wrote in 2013, when a Texas law banned state assistance in enforcement Federal Arms Federation.
Several years later, Ilya Somin, a law professor at George Mason University, pointed out that a federal attempt to force states to enforce immigration law had been declared “unconstitutional, because it violates constitutional restrictions on the federal “requirement” of state governments.” He added that “commandation, a doctrine established by the Supreme Court in the 1990s, occurs when the federal government forces states and cities to help enforce federal law.”
Specifically, Justice Sandra Day O’Connor wrote for the majority New York v. United States (1992): “The federal government cannot compel states to enact or administer a federal regulatory program.”
This was called the “anti-commandeering doctrine”. This means that while states and localities cannot actively prevent federal enforcement of laws and rules created in Washington, they do not have to spend a single dime or drop of sweat to assist the feds.
Utah’s statehood law has its roots in a dispute over a U.S. Environmental Protection Agency rule intended to force states to reduce ozone emissions, potentially shutting down coal-fired power plants on which the state depends. Under the law, “Utah could simply take no action until the matter has gone through the court system,” said Amy Joi O’Donoghue of Desert news noted at the time of signing the bill. Or the feds could do something themselves, but they usually rely on compliance and enforcement at the local level.
Everyone has the opportunity to (dis)like local autonomy
As Adler and Somin point out, the anti-commandeering doctrine has been invoked to create “sanctuary cities” that do not cooperate with federal immigration authorities and to create “Second Amendment sanctuaries” that do not help enforce federal immigration laws. weapons. Like all aspects of federalism, it’s something Democrats love when Republicans dominate in Washington, and vice versa. Even libertarians, who are more consistently inclined to encourage people to choose the rules by which they live, have used the doctrine, most notably in the form of Norman Vroman, one-time libertarian district attorney of Mendocino County, California, who he had little use in government and refused to enforce marijuana prohibition.
“Americans of all political persuasions have much to gain from greater enforcement of constitutional limits on federal authority,” Somin noted. “One-size-fits-all federal policies often work poorly in a highly diverse and ideologically polarized nation.”
Low-drama challenge vs. high-profile confrontation
Utah’s act of defiance was almost lost against the headline-grabbing border conflict between Texas and D.C. officials involving migrants and barriers.
“The federal government has broken the compact between the United States and the States,” Texas Gov. Greg Abbott charged in January in the ongoing dispute over immigration and border control. “The Texas National Guard, Texas Department of Public Safety and other Texas personnel are taking action… to secure the Texas border.”
Texas built a National Guard base at Eagle Pass and dedicated state troops to border control, who were joined by contingents from other Republican-led states. It’s a direct challenge to federal jurisdiction that almost seems created as a marketing gimmick for a certain upcoming movie about a second civil war that’s generating a lot of buzz. The standoff is also very close to the supremacy clause that worries Robert Keiter of the University of Utah so much, so much so that the Texans’ act of defiance may not survive the legal challenge.
But if Texas is setting the current tone for state and local relations with the federal government, Utah demonstrates an undramatic way of setting boundaries based on the Constitution and existing judicial precedents. Confronting the feds may get publicity, but ignoring them has a better chance of success. It’s also an approach that’s likely to be very popular.
“Only 16% of Americans say they trust the government in Washington to do the right thing almost always or most of the time,” according to Pew Research.
“Americans have more trust in local government (67%) and less trust in the legislative branch of the federal government, or Congress (32%),” add Gallup pollsters. State governments fall between the two.
Americans appear ready to move decision-making closer to home, as local as possible. For those of us inclined towards personal freedom let us not forget that the most local authority of all is the individual.