The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In April, I wrote about how the conservative state of Montana enacted a law making itself a gun sanctuary, similar to liberal immigration sanctuary cities and states. I predicted then that other conservative states are likely to adopt the same approach. And that is exactly what has happened, as described by Reason's
Since 1987, Oregon has prohibited law enforcement agencies from arresting or detaining people whose only crime was entering or living in the U.S. illegally. Hundreds of other jurisdictions have followed suit, becoming so-called sanctuary cities.
"The methods that we need to use are the ones already being used by the left," says Anthony Sabatini, a Republican member of the Florida House of Representatives. "Nullifying unconstitutional federal laws is both legal and the right thing to do."
Sabatini is co-sponsoring a Florida bill that would bar state employees from enforcing or attempting to enforce any of several listed federal gun controls, including taxes, registrations, bans, and more. State employees who violate that prohibition would be permanently barred from working for Florida's government.
In April, Republican governors in Arizona, West Virginia, and Montana signed similar bills into law, while Arkansas' governor, also a Republican, vetoed a bill. Such measures have passed in the Alabama Senate, the Missouri House, and the South Carolina House as well as legislative committees in Texas, New Hampshire, and Louisiana. Bills also have been introduced in North Carolina, Georgia, Minnesota, Ohio, Nebraska, and Iowa.
Many states already defy federal law, through both immigration sanctuaries and marijuana legalization. "In terms of the method, it's identical," says Sabatini. Sanctuary cities have "stopped reporting to or dealing with [Immigration and Customs Enforcement], and that's basically what we're doing."
The legal case does not depend on the constitutionality of the law a state wants to nullify in this way. Under the anti-commandeering doctrine, a principle that has been upheld in five Supreme Court cases from 1842 to 2018, the federal government can't require state or local officials to participate in the enforcement of federal laws.
"We know this stuff has been working," says Michael Boldin, founder and executive director of the Tenth Amendment Center. "The right can continue to complain about the things that the left is successful at, or they can look at it, learn from it, and replicate it."
Both Osterhoudt and Sabatini use the term "nullification" to describe what these states are doing. But that isn't actually correct. As understood by John C.Calhoun and others who sought to use nullification to protect slavery and other southern state interests in the 19th century, the term meant that the federal laws in question were null and void in their states. If the theory was correct, neither state nor federal authorities would have any right to enforce them. By contrast, liberal immigration sanctuaries and conservative gun sanctuaries are merely preventing their own state and local law enforcement agencies from helping the federal government enforce the laws in question. But the laws remain binding, and the federal government can still use its own resources to pursue violators. For example, federal ICE agents can still pursue undocumented immigrants in immigration sanctuaries, and federal ATF agents can still pursue people who violate federal gun laws in Montana.
While sanctuary laws don't totally block enforcement of federal legislation, they do make it much more difficult by denying the federal government the assistance of state and local assistance. In most places, there are far more state and local police than federal agents, whether ICE or ATF.
Unlike nullification, which arose in part as a defense of slavery, anti-commandeering—the principle underlying sanctuary jurisdictions, was actually used in the 19th century to deny state cooperation to federal efforts to enforce the Fugitive Slave Acts:
In March 2018, when the Trump administration was battling sanctuary cities, soon-to-be National Security Advisor John Bolton challenged the concept in an interview with Breitbart. "The idea that law enforcement at lower levels shouldn't be required to cooperate with the feds is just unthinkable," he said. "That was also proposed by South Carolina Sen. John C. Calhoun before the Civil War, to say that South Carolina and other slave states would not enforce federal law regarding slavery."
[Michael] Boldin says that argument is ahistorical. The anti-commandeering doctrine originated in the 1842 Supreme Court case Prigg v. Pennsylvania, which upheld the Keystone State's right not to enforce the Fugitive Slave Act of 1793. "The bottom line is nullification (banning participation in federal enforcement) was actually a tool of the anti-slavery, abolitionist North," Boldin says. "And when South Carolina seceded…they issued a document to explain their rationale, specifically [citing] Northern nullification of the federal Fugitive Slave Act."
The Trump administration launched an extensive campaign to try to pressure liberal immigration sanctuary jurisdictions into giving up their policies. Most of these efforts were struck down by courts because they ran afoul of constitutional prohibitions on federal "commandeering" of state and local government, and executive imposition of conditions on state recipients of federal funds without congressional authorization.The same fate would likely befall any Biden administration efforts to try to bully the gun sanctuaries into submission.
I am one of the relatively few people who support both liberal and conservative sanctuary jurisdictions. The more sanctuaries, the better! I outlined some of the reasons why in my post on the Montana law:
Liberal Democrats were happy to use constitutional protections for federalism to protect sanctuary cities and states against Trump, while many Republicans advocated broad theories of federal power to try to get around those limits.
Now that there is a Democrat in the White House, and the issue is gun rights, rather than immigration, the shoe is on the other foot. Many of those who defended liberal sanctuary jurisdictions are likely to denounce the Montana law, and vice versa. "Fair weather federalism" is a ubiquitous element of American politics….
I am one of the relatively few people who sympathize with both liberal immigration sanctuaries, and conservative gun gun sanctuaries. To my mind, both are countering federal laws that are at best counterproductive, and at worst deeply harmful and unjust.
But, even aside from the merits of specific policies, there is great value in having a federal system that leaves room for sanctuary jurisdictions of various ideological stripes. I outline some of the reasons why here:
[T]here is a good deal of inconsistency and "selective morality" in the discourse over sanctuary cities. People who sympathize with left-wing sanctuary causes tend to condemn right-wing ones, and vice versa, even in cases where the legal and moral issues involved are remarkably similar. Such… bias is part of the broader phenomenon of "fair weather federalism," where both Republicans and Democrats all too often condemn or praise limitations on federal power depending primarily on whose ox is being gored…..
I would prefer a broader and more principled commitment to limiting federal power, on both left and right. But I fear we may not get it anytime soon.
In the meantime, even hypocritical sanctuary movements can still provide valuable foot-voting options and protect people against overreaching federal government policies.
UPDATE: I have made a few small additions to this post.