Federalism

The Feds Can't Compel States to Enforce Restrictions on Guns or Immigrants

The anti-commandeering principle serves causes favored by both the right and the left.

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When state and local officials decline to help enforce federal firearm rules they view as unconstitutional, The New York Times says, they are adopting "a legally shaky but politically potent strategy" with racist roots. But when state and local officials decline to help enforce federal immigration rules they view as "unjust, self-defeating and harmful to public safety," the Times says, they should be "proud" of "choos[ing] not to participate in deportation crackdowns."

That blatant double standard illustrates how policy preferences and partisan allegiances color people's views of federalism, which they tend to endorse when it serves their purposes and reject when it doesn't. But as Missouri Gov. Mike Parson and Attorney General Eric Schmitt recently observed while defending that state's Second Amendment Preservation Act, "you cannot have it both ways."

Missouri's law, which Parson signed last week, is part of a broader movement to resist federal gun control. It declares that some federal firearm policies—including bans, registration requirements, and taxes that have "a chilling effect" on purchases—"shall be considered infringements on the people's right to keep and bear arms," which is guaranteed by the Second Amendment and the state constitution.

The law says such rules "shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." It authorizes injunctions against law enforcement agencies that violate this new policy, along with civil penalties of $50,000 "per occurrence."

In response to anxious questions from the U.S. Justice Department, Parson and Schmitt said the law's restrictions and remedies apply only to state and local officials. That means they do not interfere with federal enforcement of federal laws—the same point the Times made in defense of "sanctuary" cities and states.

The immediate impact of this law—which is similar in spirit to laws passed by 11 other states this year, although their details and practical significance vary widely—is likely to be minor. The restrictions do not apply to federal firearm offenses that are also crimes under Missouri law, and currently there is not much difference between those categories.

The main point of the law, according to its sponsors, is proactive. Should Congress pass the gun controls that President Joe Biden favors, such as a ban on the manufacture and unregistered possession of "assault weapons," Missouri officials will be prohibited from assisting in their enforcement.

Contrary to what the Times reported, that policy is not "legally shaky." It relies on the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.

That doctrine is rooted in the basic design of our government, which limits Congress to a short list of specifically enumerated powers and leaves the rest to the states or the people, as the 10th Amendment makes clear. That division of powers gives states wide discretion to experiment with different policies, some of which are bound to offend the Times.

The paper suggests that defending state autonomy is disreputable, because that argument was "deployed in the past in the South to resist antislavery and civil rights laws." But federalism does not give states a license to violate rights guaranteed by the Constitution or to flout laws authorized by it.

Although the Times tries to tar the anti-commandeering principle as racist, the same basic idea was a crucial weapon for Northern states that refused to help the federal government enforce the Fugitive Slave Act. Today that principle likewise means that state and local officials have no obligation to participate in the "deportation crackdowns" that the Times decries.

Similarly, the ongoing collapse of marijuana prohibition—a development the Times welcomes—would be impossible if states were obligated to participate in the federal war on weed. While both progressives and conservatives might wish that federalism could be limited to achieving results they like, that is not how constitutional principles work.

© Copyright 2021 by Creators Syndicate Inc.

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    3. All gun control laws are prohibited by the 2nd amendment. It restricts feds and state governments.

      Immigration is a federal enumerated power as of 1808 (Article I, section 9). States refusing to follow federal immigration law should be punished per the Supremacy statutes (withholding federal monies, etc).

      Its all moot right now anyway since America is in civil war 2.0

      1. Actually naturalization is an enumerated power, not immigration control. The section you cite refers to importation of slaves, not immigration of free persons. Federal supremacy over immigration law wasn’t established until 1870s; before then many states had their own immigration statutes.

        And this is all moot because anti commandeering doctrine doesn’t depend on constitutionality of the law in question. Fugitive slave laws were constitutional but states were nevertheless not obligated to help enforce them.

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  3. I think you need to take a look at how far California went in becoming an illegal immigrant ‘sanctuary’.

    They didn’t stop at directing state employees not to assist in enforcement, which I agree they were entitled to do. More dubiously, they also mandated that state employees not communicate with immigration authorities on their own time, such as tipping them off when an illegal immigrant was going to be released.

    And then in a total outrage, required that private citizens actively obstruct immigration enforcement, by warning employees of when ICE was going to be visiting.

    1. Legitimate question…
      Would you applaud a state if they required that their employees not tip off ATF, on their own time, to someone who had an “illegal” weapon under federal law?

      1. A good deed in my view, to “tip off” someone who owned a weapon or two like mine, but not if “required.”

        Curious if anyone has been punished for failing to tip off undocumented [aka “illegal”] aliens? That would be a crime of omission, like not filing your taxes, or similar failure of a duty to act? Would that be culpa or dolo?

        1. I would think that would be a violation of 1A. The state or fed can’t compel you to speak. Not sure if it would have gone to court or not, I guess that would depend on the circumstances.

          Going back to my original question…. it seems like a reasonable restriction on speech for a state government to tell their workers that they can’t disclose someone’s immigration status (or their possession of weapons) if it were obtained on behalf of the state. It would be no different than telling police that they can’t give out personal information obtained in a criminal investigation. There would be almost no way to catch someone in violation of that though, especially if the tip were anonymous.

          1. That’s why I related that part as merely dubious, while reserving the real outrage for their ordering employers to warn their workforces of ICE visits. Mandating actual obstruction on the part of the private sector is well past questionable, and into unconstitutional.

            1. Most progressives belong in prison for a variety of reasons.

        2. I’d say there is a supremacy issue here, not just a 1A issue.

          More generally, if the federal government requires you to do something, and the state government bans you from doing that thing, your kinds stuck in a really bad situation. There are a number of cases like this, not always even rights based, its been resolved as followed: you can ignore the state law, and you must follow federal law.

          So if the government required you to assist, which is bad but I guess they can, you cant be punished by the state for that.

          Now if the feds didn’t compell anything, you did it on your own, well, that might fall under 1A

      2. I’d applaud the sentiment, but say it was an abuse anyway, because I think that what government employees do on their own time isn’t the government’s business. Even if they’re telling their employees not to be assholes.

    2. I’m fine with that. Doubly fine with that if my state is willing to do the same vis-a-vis gun laws.

    3. Seems that California is more interested in restricting/undercutting the constitutional rights of Americans than it is in controlling illegal entrance into the U.S., strange but it appears true.

      1. Yup, it’s really strange. I have no explanation as to why that would be the case. There just isn’t anything useful in that, politically. I mean, really, what are they planning?!

        1. I think that it is about the next generation of voters. The Democrats are slowly losing the black vote, so they need a new base. While illegal immigrants are not allowed to collect welfare or vote, their children are because of a poor interpretation of the 14th. The authors of the 14th said that it did not grant birth-right citizenship, but it has been interpreted to grant that.

          If you have a new generation that is dependent on welfare, you have a new generation of Democratic voters.

  4. But as Missouri Gov. Mike Parson and Attorney General Eric Schmitt recently observed while defending that state’s Second Amendment Preservation Act, “you cannot have it both ways.”

    But the essence of the human animal is thinking it can have it both ways, and sometimes more than two ways. Not so much cognitive dissonance as cognitive absence.

    And of course politics is just irrational human behavior institutionalized, so pols are just as likely to believe themselves when they promise both ways.

    1. All fun control laws are unconstitutional violations of the 2A.

      Regulation of Immigration is an enumerated power of congress.

      1. The democrats definitely believe in fun control.

        1. The democrats definitely believe in fun control.

          Fun control is definitely a Puritanical, Bible-thumper thing.

          1. Not anymore in 2021. The Democrats have caught up and passed big time. Everyone please stop living in the past, when progressive meant something that had to with freedom.

            Perspectives will continue to shift. Eyes will continue to open.

            1. Edit: had to do with freedom

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  5. “The Feds Can’t Compel States to Enforce Restrictions on Guns or Immigrants”

    Does the federal government reimburse state and local government for the costs of educating the children of immigrants in public schools?

    My understanding is that the Supreme Court ruled that it’s illegal for state and local government to deny children enrollment in public schools based on their immigration status, but that doesn’t mean paying for them should be a local or state responsibility.

    And if creating a more welcoming society for immigrants is your goal, making it so local taxpayers aren’t being forced to pay for illegal immigrants will probably help. Plenty of people don’t care what you do so long as they aren’t forced to pay for it.

    What about the cost of imprisoning illegal immigrants in state prisons?

    Isn’t it correct to say that even IF IF IF the feds can’t compel states to enforce restrictions on immigrants, they are compelling states (and local government) to pay for the cost of immigrants anyway?

    1. Does the federal government reimburse state and local government for the costs of educating the children of immigrants in public schools?

      The federal government sends billions of dollars to the states to fund primary and secondary education. Money being fungible, it would be impossible to say how the states spend it. I’m not saying this is right or something that should happen, but it does.

      Plenty of people don’t care what you do so long as they aren’t forced to pay for it.

      I don’t know how this is fundamentally different for the children of poor citizens.

      Isn’t it correct to say that even IF IF IF the feds can’t compel states to enforce restrictions on immigrants, they are compelling states (and local government) to pay for the cost of immigrants anyway?

      I think you have it wrong here. If a state chooses not to assist the feds to enforce restrictions on immigrants, they are de facto compelling themselves to pay the cost of immigrants. Right or wrong, agree or disagree, the same elected officials that control the budgets in states are in theory the ones that are choosing not to enforce immigration. This isn’t a taxation without representation issue from that standpoint if that is your premise.

      1. “I don’t know how this is fundamentally different for the children of poor citizens.”

        It isn’t.

        The difference is that I didn’t make a statement about the feds not compelling states to do something about educating the children of poor citizens, but the title of this article does say something about how the feds can’t compel states to do something about immigration.

        In reality, the federal government does compel state taxpayers to finance the costs of caring for, imprisoning, and educating immigrants, and I don’t think there’s a good reason to pretend otherwise. In fact, addressing this issue might do something to make America a more just society that’s more receptive to immigration at the local level.

    2. This. The difference between the 2A and illegal immigration is the difference between negative and positive rights. The 2A is a negative right (the government CANT infringe on the right to bear arms) whereas the right to freely travel is a negative right (the government can’t stop you from crossing X demarcation line) but forcing states to foot the bill to house/feed/educate/imprison illegals very much is a positive right for the government and the illegal immigrant (the federal government CAN compel the state to cover the bills for the illegal immigrant. The illegal immigrant CAN force the state to pay for his housing/education/food/medicine).

      There is a more solid legal footing to oppose federal dictates on gun laws than there is to oppose government efforts to remove people who invariably turn into welfare cases for the taxpayer.

      Negative rights are your classic, inalienable, “god given” ones. Positive rights are just declaring ownership over the products of someone elses labor.

      If you want a just immigration system, don’t make the taxpayer foot the bill. Whoever crosses the border crosses the border, but they foot the bill from start to end.

  6. The fugitive slave act [nullification does indeed have it’s “roots” in slavery and racism!], marijuana, undocumented aliens, and now, OMG, guns! How could this happen? Playing fast and loose with the law is only supposed to benefit US!

    It’s like when Harry Reid chose to exercise the “nuclear option” to push through some Obama nominees, and Democrats were outraged when over 200 mostly FEDSOC approved nominees were confirmed to the federal courts. Both ways indeed!

  7. The New York Times is not having it both ways nor is it being logically inconsistent. They are being ideologically consistent with their readers, it’s 7-to-1 Democrat to Republican in NYC.

    They are printing exactly what will sell more newspapers which is all they care about. The logical flaws are the positions of their idiot consumers but you have to give the people what they want.

    1. They care about promoting Marxist control of the US and overthrowing the constitution.

  8. The Supremacy Clause ONLY applies to the enumerated powers.

    It is actually as The New York Times says, adopting “a legally shaky but politically potent strategy” (racist? WTF? idiots!).

    It’s a potent strategy to KEEP the ‘feds’ bounded by the U.S. Constitution (The People’s Law) over them insisting they honor their oath of office or deal with another civil war.

    It really sucks that Democratic National Socialists (def; Nazi’s) have ruined this country; but this is the point they have pushed this nation too.. Either RESPECT the people’s law, MOVE to a Nazi Nation or prepare yourselves for a civil battle because I’m happy to announce there are enough USA patriots to prevent the USA from being “democratically” voted into Nazism.

    1. Sollum is misrepresenting the NY Times article here. From the Times article:

      “Critics say the concept enshrined in the new Missouri law and others like it — state laws that attempt to undermine federal ones — is a legally shaky but politically potent strategy deployed in the past in the South to resist antislavery and civil rights laws.

      The bill’s supporters said they were adopting a strategy that has been used frequently for liberal causes, such as “sanctuary city” laws that prohibit local officers from enforcing federal immigration laws. They also compared it to state laws that have legalized the use of marijuana despite a continuing federal ban on the drug.”

      Both are probably right to a degree. The provision 1.430 which says conflicting “federal acts [and] laws … shall be invalid to this state” seems clearly unconstitutional to me. States don’t get to invalidate federal laws. 1.450, which seems to be the one that disallows state officials from enforcing conflicting federal laws, should be fine under the same logic as refusing to enforce immigration or drug laws and should be severable. from any sections struck down.

      1. “The provision 1.430 which says conflicting “federal acts [and] laws … shall be invalid to this state” seems clearly unconstitutional to me. States don’t get to invalidate federal laws. ”

        Well, that depends what you mean by “unconstitutional.” If unconstitutional means whatever the federal judiciary says it means, then you may be right. If unconstitutional means in violation of the original meaning of the Constitution, then you are wrong as nullification was clearly contemplated by the founders.

  9. I know you’re trying to have a state’s rights moment, but the issues have nothing to do with commandeering.

    The Constitution cannot possibly be more explicit about immigration enforcement. This is an enumerated power of the federal government. States that assist illegal immigrants in circumventing federal enforcement are committing sedition.

    The Constitution also cannot possibly be more explicit about the right to keep and bear arms. It shall not be infringed, emphasis on shall. States that resist federal enforcement are protecting our Union from an illegitimate federal government.

    1. Understood, but don’t spoil the schadenfreude.

    2. The Constitution cannot possibly be more explicit about immigration enforcement. This is an enumerated power of the federal government.
      Andrew Napolitano disagrees. Perhaps not as explicit as you think? By the way the words “border” or “immigration” do not appear in the Constitution. Can you point to the part that you think enumerates immigration powers to the fed gov?

      1. Usually that’s the ‘migration or importation’ clause, that prohibited their exercise, but only until 1808.

        Without the federal government having authority over immigration, that clause would have been redundant.

        1. A lack of specific prohibition on the federal government doing something should not be taken as a grant of power to do that thing. As you know the entire Bill of Right was argued to be redundant at the founding, and potentially harmful because of this very sort of implication.

          1. + a bazillion!

            The whole concept of limited government has gotten turned on its head with the constant drumbeat of misinformation claims that the lack of a prohibition on the government doing something means the government can do it. There is a very short list of things the Federal government is empowered to do; being able to recite that list should be a criterion for voting. (And the “general welfare” clause is about the *general* welfare, not individual welfare a.k.a. “relief” up through the 1930’s.)

      2. “To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”

        That’s what I go off. If you cannot control who enters and what their legal status is in our country, then you cannot establish a uniform rule of naturalization.

        Necessary and proper. That’s about as explicit as you’re going to get for most issues in the Constitution.

        Also as a matter of logic, since I prefer a textual approach where we try to ascertain what the founders intended, I have never seen any resources suggesting that each State have its own immigration policy that runs afoul of federal guidelines. I’ve heard that people viewed themselves as citizens of States, but I seriously doubt the founders would have liked the idea of a rogue state inflating its census rolls with foreigners to exert more power in Congress.

        1. But the feds can’t do anything about it because the states are on firm legal ground.

          The Supreme Court dismissed the Trump petition against the California law. Including Gorsuch and other conservative heroes.

          https://www.courthousenews.com/supreme-court-rejects-trump-challenge-of-california-sanctuary-laws/

        2. Naturalization and border control are two distinct items. Granted, they work better together, but naturalization is not the same as immigration (legal or otherwise).

    3. They’re not assisting illegal immigrants in doing so.

      They are simply not assisting federal law enforcement in enforcing a federal law. They have no obligation to inform the feds of a crime. They have no obligation to hold someone until the feds can come pick them up.

      They don’t even have an obligation to not pass on intelligence received about federal law enforcement operations – kind of dickish, doing this, but there’s no duty to protect this information.

      Something which, I remind you, the federal government said local cops *were not allowed to do* when Arizona took it upon itself to help the federal government enforce immigration law.

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  11. The Times, lol.

  12. When state and local officials decline to help enforce federal firearm rules they view as unconstitutional propose gun control laws, The New York Times says, they are adopting “a legally shaky but politically potent strategy” with racist roots.

    FTFY, NYT.

    1. Modern gun control laws have their roots in Jim Crow. Which were designed to make it very difficult for blacks to own firearms.

  13. “you cannot have it both ways.”

    Sure you can. You get a little troll person in Washington DC to write a law, and you can have it both ways.

    Federalism is not something anyone actually values. Nobody is gonna give up a dime because they philosophically value the keen local knowledge of the Texas legislature. And both parties are nationalizing everything, so that’s proof that nobody gives a shit.

    Hypocrisy is already overhyped as a problem in politics, and especially when it’s hypocrisy over a principle nobody actually believes in anyway.

    1. “Sure you can. You get a little troll person in Washington DC […]”

      Oh, you moved to DC?

  14. Actually, the action by Missouri goes beyond asserting anti-commandeering. It declares unconstitutional laws to be invalid, not recognized, and rejected in the State. That is called nullification, and it’s far more important and integral to federalism than anti-commandeering.

  15. “If it weren’t for double standards, some people wouldn’t have any standards at all”

  16. Something of the sort happened in 1923, when Al Smith signed repeal of New York’s State prohibition law. Republicans, Prohi partisans and the Klan were aghast and made fiery speeches against Whiskey Al. But never once did they mention how grateful New York voters jammed the polls to reelect him. No law said States had to help federal fanatics jail and shoot people over light beer.

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