The title of my recent column, “The land of 3,327 Constitutions,” referred to the destructive situation that I argued would arise if states were able to nullify federal laws and county sheriffs could refuse to enforce laws they believe are unconstitutional. We would, I said, become a nation in which the Constitution means different things in different places – a situation that should horrify everyone. But, the ink was barely dry before the non-horrified attacked.
Comments and emails rushed in expressing outrage at my assertion that some West Virginia sheriffs were dangerously misguided when they announced that, based on their oaths to “uphold the Constitution,” they would refuse to enforce “any gun control laws that Congress may pass.” I had contended that, by refusing to enforce laws that are properly enacted and that have not been ruled unconstitutional by the courts, the sheriffs were wrongly arrogating to themselves powers superior to those of legislatures and of the courts. “No!” shouted the critics. The sheriffs, they insisted, were merely exercising powers conferred upon them by the Constitution and, as proof of that claim, one after another, the critics cited a Supreme Court case called Mack and Printz v. The United States.
So, I went online to read what other gun rights and 10th Amendment advocates were saying about the Printz case. And, frankly, as I read the legal points the advocates said could be found in the Supreme Court’s ruling, I had to concede that, if they were right, I really had blundered in my column. In fact, I was even moved to draft an apology to readers and to the sheriffs whose actions I had criticized. But, before throwing myself at their feet in a frenzy of self-abasement, I thought I should at least take a look at the court’s actual opinion to see if it really said what was being claimed.
Mack and Printz v. The United States came about because in 1993 Congress passed the Brady Handgun Violence Protection Act, which required the attorney general to establish a background check system to prevent felons and others who are not eligible to possess firearms from making weapons purchases.
Because the federal government would require years to install the infrastructure needed to implement the law, Congress specified that, in the interim, state and local law enforcement agencies would be responsible for carrying out the background checks. Jay Printz and Richard Mack, who were the chief law enforcement officers in counties in Montana and Arizona, objected and sued, arguing that the federal government could not constitutionally compel their agencies, which were state entities, to enforce federal laws.
While the Brady Bill as a whole survived the challenge and the background check system went into effect, in a 5-4 ruling the Supreme Court agreed with Printz and Mack on the narrower question of whether the federal government could compel state participation in the law’s enforcement. The majority opinion said, “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.” Consequently, that provision of the law was ruled unconstitutional.
The court’s ruling was abundantly clear about the constitutional limits on federal power, but what about the constitutional powers and prerogatives of sheriffs? Gun enthusiasts and 10th Amendment advocates were claiming that the Court had recognized that sheriffs may judge laws unconstitutional; that they have discretion to not enforce those laws; and, given sheriffs’ standing as the “chief law enforcement officers” in their jurisdictions, that they also possess the authority to prevent federal agents from enforcing those laws in their counties.
Pretty powerful stuff! So, I looked up Justice Antonin Scalia’s majority opinion and I read and I read and I read and then I came to the end. The thing about sheriffs’ authority to deem laws unconstitutional? Not there. The thing about sheriffs having discretion not to enforce laws? Not there. The thing about sheriffs having the authority to prevent federal agents from enforcing “unconstitutional” federal laws in their jurisdictions? Not there either.
In fact, the Printz decision says absolutely nothing about sheriffs’ constitutional powers. The ruling merely states that the federal government may not commandeer state personnel – whether they are law enforcement officers, dogcatchers or building janitors – for the purpose of implementing federal laws and regulations.
So, what are we to make of the West Virginia sheriffs’ announcements that they will refuse to enforce “unconstitutional laws”?
Unless a duly enacted law that falls within the sheriffs’ purview has been found by the courts to be unconstitutional, the sheriffs will enforce it – even if it’s a gun control law.
And, while the sheriffs won’t enforce unconstitutional laws, it won’t be because they refuse to. It will be because a court has declared the laws unconstitutional. All of which means that the West Virginia sheriffs’ announcements that they will “refuse to enforce unconstitutional laws” are completely meaningless simply because no one is asking them to.
Of course, the sheriffs could attempt to independently declare laws unconstitutional and refuse to enforce them, in which case their actions would be illegal and could constitute obstruction of justice.
As for those who believe that sheriffs possess the constitutional authority to do these things, they are merely guilty of wishful thinking.
— Sean O’Leary can be contacted at firstname.lastname@example.org. This column and others can be seen at www.the-state-of-my-state.com