Whenever we publish something about an anti-commandeering-style nullification bill, somebody inevitably responds with something along these lines. “I’m not a lawyer, but doesn’t federal law supersede state law?”

In short, the answer to that question is no.

In fact, the Supremacy Clause doesn’t even apply when it comes to anti-commandeering.

Anti-commandeering laws merely prohibit the use of state resources or personnel for the implementation of enforcement of federal acts or regulations. This approach does nothing to block federal enforcement, nor does it claim to alter the law. It merely denies the federal government state support.

Although under the Supremacy Clause, federal laws passed in pursuance of the Constitution stand superior to state laws (In other words, only in areas where the they feds are delegated authority.) there is no requirement that states enforce them. Ultimately, the federal government must enforce its own acts. States can participate if they want to, but  they can also legitimately refuse to do so.

Anti-commandeering legislation takes advantage of this constitutional truth.

Rather than direct action against federal laws, acts or regulations, anti-commandeering is simply a lack of any state action whatsoever. When the feds come around to enforce their laws or implement their programs, the states just stand back and shove their hands in their pockets, so to speak. What makes this tactic so effective is that in practice the feds are utterly reliant on the states to enforce their laws. When the states withhold their help, the federal laws lose their teeth.

Anti-commandeering leads to nullification in effect, but it is carried out in an indirect manner. For example, states can refuse to assist the feds in carrying out raids in order to enforce federal drug laws. Without state assistance, the feds can’t carry out as many raids – if any at all. As a result, the law is not enforced as vigilantly – if at all. The federal law remains on the books, but it is not enforced in practice.

James Madison advocated this tactic, writing in Federalist #46 that if the people in a state were opposed to “unpopular” federal laws, even constitutional ones, they had the ability to undermine them by a refusal to cooperate.

…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 co-operate with the officers of the Union…would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter (bold emphasis added).

If opponents of anti-commandeering believe it is unconstitutional, they will have to look somewhere besides the Supreme Court for validation. Based on four major cases spanning more than 160 years, the SCOTUS 100 precedent upholds anti-commandeering on constitutional grounds. Going as far back as Prigg v. Pennsylvania (1842) and as recent as Independent Business v. Sebelius (2012), the Court has consistently found that the federal government cannot compel or coerce the states to enforce their laws. The only entities that are legally required to enforce federal laws are federal agencies themselves.

Those opposed to such anti-commandeering can certainly argue against it on practical grounds. But those who say that it is illegal don’t have a leg to stand on.

Anti-commandeering action is one of the most effective and certain means of undermining bad federal laws without fear of being struck down by federal courts.

TJ Martinell

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