Mike Maharrey at the Tenth Amendment Center discusses The Anti-Commandeering Doctrine and its use to combat federal overreach.

The anti-commandeering doctrine provides a powerful tool to undermine overreaching, unconstitutional federal power. So, what is this doctrine? What is it based upon? And how can it be used as an effective tool for liberty?

How Do We Confront Federal Overreach?

Most people assume the feds have the final say. When Uncle Sam says jump, states and local government simply ask, “How high?” But given that 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, how do we hold the federal government in check? How do we stop it from exercising powers not delegated?

This isn’t a new question. In fact, those skeptical of the Constitution raised it during the ratification debates. James Madison answered it in Federalist #46.

In his blueprint for resisting federal power, Madison offered a number of actions, but most significantly, he suggested that a “refusal to cooperate with officers of the union” would impede federal overreach.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]

What Is the Anti-Commandeering Doctrine?

Anti-commandeering is a longstanding Supreme Court doctrine. In a nutshell, the anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes.

In effect, 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.

Which Supreme Court Cases support the Anti-Commandeering Doctrine?

The anti-commandeering doctrine rests on five landmark cases, the first dating back to 1842.

Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution

New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (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 officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at     (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Murphy v. NCAA (2018), the Court 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. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

Can’t the Federal Government Punish Wayward States By Cutting Funding?

In simple terms, the federal government cannot use funding to coerce states to take a desired action. Independent Business v. Sebelius directly addressed this issue.

The federal government can withhold funding related to any action that a state refuses to take, but with some significant limitations and caveats. For instance, if the state refuses to enforce federal marijuana laws, the federal government can possibly cut some funding relating to drug enforcement. But it cannot cut unrelated funding to punish the state. In other words, Congress couldn’t cut education funding to punish a state for not cooperating with marijuana prohibition.

How Do We Determine What Is or Isn’t Constitutional? Isn’t that the Supreme Court’s Job?

The short answer is 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.

Will This Strategy Work?

The federal government 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 in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal law enforcement efforts and program implementation, states, and even local governments, can effectively bring the federal actions to an end.

Consider the 36 states that have legalized marijuana despite federal prohibition.

The legalization of marijuana in a state removes a layer of laws prohibiting the possession and use of marijuana even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

The same is true for virtually every federal action, from gun control, to Obamacare, to FDA mandates. The federal government depends on the states. And the states don’t have to cooperate.