December 11, 2023

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Police That Ignore Federal Law Ignore Democracy


Given the horror of mass shootings that just won’t stop, it’s hard not to be troubled that more than 60% of the counties in the US are covered by so-called Second Amendment “sanctuary” laws. These counties claim they won’t enforce some or all federal gun safety laws. My reaction, and maybe yours, is to insist that it shouldn’t be up to local officials to decide which laws they want to enforce.

But if you want to make that argument — and I do — there’s a further problem to address. As the term “sanctuary counties” might remind you, liberals have their own similar scheme: the “sanctuary cities” movement. That movement encompasses jurisdictions (cities, towns, counties or states) that won’t help the federal government detain and deport undocumented immigrants.

Is it possible to make a principled distinction between conservative jurisdictions’ policy preference not to enforce gun laws and liberal jurisdictions’ policy preference not to enforce immigration laws?

Or must liberals abandon the embrace of sanctuary cities against immigration enforcement if they want to criticize nonenforcement of gun laws fairly?

It’s worth distinguishing this question from the always-important issue of prosecutorial discretion. As a general matter, law enforcement has the discretion to choose how much of its resources to put into making arrests or prosecuting particular types of crime. But setting priorities is different from officially declaring that you won’t enforce some valid laws at all. 

Let’s start with the practical question of just what sanctuary counties are, how many of them exist, and whether they actually don’t enforce binding laws. As it turns out, the answers to those questions aren’t that simple.

First, the term “sanctuary counties” includes counties that don’t have their own policies, but are in states that have gun-related sanctuary laws. The word “counties” seems to be in use because of its vague association with rural areas (big liberal cities are located in counties too, of course). The associative idea seems to be that cities are liberal (hence, “sanctuary cities” for liberal anti-immigration) while (rural) counties are conservative (hence, pro-guns).

Second, gun-sanctuary jurisdictions are covered by legislation, nonbinding resolutions, and other policies, that contain different language with differing effects. They aren’t all the same.

Thus, for example, consider the state of Alabama, which in 2022 passed a law that says no state employee may enforce any presidential executive order that limits access to guns. That law is symbolically striking. Yet of the Joe Biden administration’s list of 22 executive actions to combat gun violence, none is formally an executive order. So it isn’t clear just what Alabama’s law does in practice.

It’s also worth noting that the Alabama law is nothing compared to an earlier version of the bill, which would have made it a state crime for Alabama state employees — including police — to enforce any federal gun law in any way.

In 2021, Arizona passed a law that bars state employees from enforcing any federal gun law “that is inconsistent with any law of this state.” Does that language mean any federal gun law that goes farther than Arizona law, in which case it could have substantial legal effects? Or does it actually mean only that police in Arizona can’t enforce any federal law that contradicts Arizona law, which might leave all federal gun laws enforceable?

The question isn’t just theoretical. All over the US, agents from the Federal Bureau of Investigation, Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration, and other federal agencies work alongside state and local cops. Those joint task forces typically arrest criminals together and then decide whether to charge them in state or federal court, depending on the seriousness of their crimes and other factors. Such collaboration could be blocked by a state law that genuinely prohibited enforcement of federal gun laws.

Alabama and Arizona don’t even get us through the A states. And there are literally hundreds of local counties with sanctuary laws of their own. It seems possible that at least some would conclude that local authorities shouldn’t enforce any gun laws. Many jurisdictions, however, take the less dangerous tack of simply declaring that unconstitutional gun laws are deemed invalid, without expressly stating whether they are referring to laws held unconstitutional by the courts or those that the counties themselves deem unconstitutional.

The upshot is that generalization is tricky. But for the purpose of comparing gun sanctuaries with immigration sanctuaries, it may be enough to note that some of the same legal strategies have been used in both contexts.

The common thread in the laws and resolutions proclaiming gun sanctuaries and those proclaiming immigration sanctuaries is the constitutional principle of federalism — at least as it has been developed by the courts.

The Constitution makes federal law “the supreme law of the land.” Article VI, which contains that clause, goes on to say that “judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The plain meaning of this provision is that states must enforce federal law. In the original design of the Constitution, that almost certainly meant that state officials would have to enforce federal law. Considering that at the time, most states would have had almost no federal officials other than customs collectors and postal officials, the framers must have expected state officials to enforce federal law unless they didn’t expect much of that law to be enforced at all.

But in the 1990s, the Supreme Court invented a doctrine known as “anti-commandeering.” In a 1997 case called Printz v. United States, Justice Antonin Scalia wrote an opinion for the court holding that Congress may not obligate state officials to expend any energy or money enforcing federal law. The states, the court held, possessed an inherent authority to refuse to do the bidding of the federal government. Scalia dismissed objections using the kind of bad historical reasoning that has become only too common on the current court.

The Printz decision embodied what was then called the “new federalism,” in which states’ rights were resurrected after many decades of well-deserved neglect. It opened the door for states, whether liberal or conservative, to frame a legally defensible version of sanctuary laws.

The basic idea is that if Congress makes a law, Congress can enforce it — but state or local governments won’t lift a finger to help. Under Printz, that’s lawful. And there is relatively little the federal government can do to coerce states or localities to cooperate. Congress can bribe states or cities with money. But it can’t threaten to withdraw federal funds if the threat is too serious. That’s what Chief Justice John Roberts called a “gun to the head” in the important Obamacare decision, NFIB v. Sebelius.

What states and localities can’t do, even under Printz, is actively impede federal enforcement of federal law. That would violate the idea that federal law is supreme over state law.

The limits of state officials’ authority to interfere came to a head in 2018, when a Massachusetts state judge and an officer at her court allegedly let a defendant leave the courthouse by a backdoor to avoid being apprehended by an ICE official. President Donald Trump’s Department of Justice charged the state judge and the court officer with federal crimes. (These charges were dismissed in 2022 by Biden’s Department of Justice.)

The takeaway here is that constitutional law doesn’t afford much of a ground for distinguishing gun sanctuaries and immigration sanctuaries. The noncooperation authorized by Printz can be used in both situations. Active interference with federal law would be unlawful in both cases, too.

If nonenforcement sanctuaries are constitutionally permissible, can progressives condemn gun sanctuaries while supporting immigration sanctuaries? Certainly, they can try — perhaps by arguing that gun laws are morally correct while immigration laws are not. They could argue that when a law is just, the state should enforce it. When it isn’t, the state shouldn’t.

There is, I am afraid, a serious problem with this approach, even if you like the outcome: Both gun laws and immigration laws have been enacted by legitimate legislative bodies. Both have been upheld by our court system.

In neither situation are we talking about civil disobedience in the usual sense of the term. Civil disobedience applies when an individual citizen or group of citizens violates the law, believing that the law is immoral — the way members of the civil rights movement violated segregation. Typically, practitioners of civil disobedience are private citizens. They know their conduct is illegal under existing norms. Ordinarily, they accept punishment under existing law, hoping that the law will ultimately be changed or struck down.

In contrast, nonenforcement policies are directed at and executed (or to be more precise, not executed) by law enforcement officials. Their refusal to enforce the law deprives the entire population of the protection supposed to be afforded by the legal order.  

When a sworn public official refuses to enforce the laws adopted by voters, that is arguably a dereliction of duty — and a violation of a law enforcement officer’s oath to obey the Constitution. If there are circumstances where that is justified, we need to be able to identify them in detail. Otherwise, we don’t have the rule of law. We have the rule of whoever happens to hold the reins of power.

That’s why we are rightly concerned when a clerk won’t issue a marriage license to a gay couple. The clerk might well believe, in conscience, that same-sex marriage is wrong. But her refusal to provide the license as part of her official duties reflects on the state.

Similarly, when Southern elected officials stood in schoolhouse doors and refused to admit Black students in the aftermath of Brown v. Board of Education, that violated the officials’ oath of office and could not be excused as civil disobedience.

The question of whether intentional, principled nonenforcement is ever moral is itself related to the classic question of whether it’s ever morally acceptable for juries to engage in nullification of laws they don’t like. On one hand, nullification seems appealing when we disapprove of the law in question. On the other, my teacher Owen Fiss used to point out that a jury is not the polity. It’s just twelve randomly selected people.

This argument can be applied even more forcefully to local refusals to enforce federal law. It may well be legal under Printz. Nevertheless, the idea that the people of one jurisdiction can ignore laws intended to govern all 330 million Americans is a worrisome deviation from democratic principles and the rule of law.

Nonenforcement of gun laws — or any federal laws — is something we can expect to see more of in our ever-more polarized country. But that doesn’t make it right.

More From Bloomberg Opinion:

• Trump Finds an Opening Against DeSantis: Joshua Green

• C-SPAN Won’t Solve Your Democracy Problem, America: Jonathan Bernstein

• Abortion Pill Lawsuit Won’t Get a Fair Shake in Post-Roe America: Noah Feldman

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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