Utah Tells the Feds To Pound Sand

A few weeks ago, Utahns joined the ranks of Americans telling the federal government to go pound sand. The move is less dramatic than the confrontation playing out in Texas, where state officials are essentially implementing their own international border control policies, but it's also more clearly based in law. The state's defiant move is an example of the sort of local conflict with higher levels of government that has become common in recent years and is likely to define fraught American politics in times to come.

States vs. the Feds

"Balancing power between state and federal sovereignty is an essential part of our constitutional system," Gov. Spencer Cox, a Republican, commented in January upon signing the Utah Constitutional Sovereignty Act. "This legislation gives us another way to push back on federal overreach and maintain that balance."

That law states: "The Legislature may, by concurrent resolution, prohibit a government officer from enforcing or assisting in the enforcement of a federal directive within the state if the Legislature determines the federal directive violates the principles of state sovereignty" with "government officer" defined as "an individual elected to a position in state or local government."

Basically, the act says if Utah doesn't like a federal law, the feds will have to enforce it themselves.

"This sends the message, and the Utah legislature is famous for sending messages of this sort, that it's unhappy with the federal government," Robert Keiter of the University of Utah's S.J. Quinney College of Law told CNN. "(And it's) expressing that in a way that is constitutionally problematic."

Keiter points to the Constitution's Supremacy Clause, which says federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." That settles the matter, he claims. Except it doesn't.

The Feds Can't Require State Assistance

"Under Printz and New York v. United States it is well established that the federal government cannot force state officials to implement federal laws," Case Western Reserve University School of Law's Jonathan Adler wrote in 2013 when a Texas law barred state assistance in enforcing federal gun control.

Several years later, Ilya Somin, a professor of law at George Mason University, pointed out that a federal effort to compel states to enforce immigration law had been ruled "unconstitutional, because it violates constitutional restrictions on federal 'commandeering' of state governments." He added that "commandeering, a doctrine the Supreme Court established in the 1990s, occurs when the federal government forces states and cities to help enforce federal law."

Specifically, Justice Sandra Day O'Connor wrote for the majority in New York v. United States (1992): "The Federal Government may not compel the States to enact or administer a federal regulatory program."

That's come to be called "anti-commandeering doctrine." It means that, while states and localities can't actively impede federal enforcement of laws and rules created in D.C., they don't have to expend a single dime or drop of sweat to assist the feds.

The Utah sovereignty law is rooted in a dispute over a U.S. Environmental Protection Agency rule intended to force states to curtail ozone emissions, potentially by closing coal-fired power plants on which the state depends. Under the law, "Utah could simply fail to take any action until the issue works its way through the court system," Amy Joi O'Donoghue of Deseret News noted upon the bill's signing. Or the feds could do something themselves, but they usually rely on local compliance and enforcement.

Everybody Gets a Turn at (Dis)Liking Local Autonomy

As Adler and Somin point out, anti-commandeering doctrine has been invoked by to establish "sanctuary cities" that don't cooperate with federal immigration authorities, and to create "Second Amendment sanctuaries" that don't help enforce federal gun laws. Like all aspects of federalism, it's something Democrats love when Republicans dominate in D.C., and vice versa. Libertarians, who are most consistently inclined to encourage people to pick the rules by which they live, have also used the doctrine—notably in the form of Norman Vroman, one-time Libertarian district attorney of Mendocino County, California, who had little use for government and refused to enforce marijuana prohibition.

"Americans of every political stripe have much to gain from stronger enforcement of constitutional limits on federal authority," observed Somin. "One-size-fits-all federal policies often work poorly in a highly diverse and ideologically polarized nation."

Low-Drama Defiance vs. High-Profile Confrontation

Utah's act of defiance was almost lost against the headline-grabbing conflict playing out at the border between Texas and D.C. officials involving migrants and barriers.

"The federal government has broken the compact between the United States and the States," Texas Governor Greg Abbott charged in January in the ongoing dispute over immigration and border control. "The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting…to secure the Texas border."

Texas built a National Guard base in Eagle Pass and dedicated state troops to border control, joined by contingents from other Republican-led states. It's a direct challenge to federal jurisdiction that almost seems crafted as a marketing stunt for a certain upcoming movie about a second civil war that's getting lots of buzz. The standoff also skates very close to the Supremacy Clause that so troubles the University of Utah's Robert Keiter—enough so that Texans' act of defiance may not survive legal challenge.

But if Texas is setting the current tone for state and local relationships with the federal government, Utah demonstrates a low-drama way of setting boundaries based on the Constitution and existing court precedents. Facing off with the feds may get publicity but ignoring them has a higher chance of success. It's also an approach likely to be widely popular.

"Just 16% of Americans say they trust the government in Washington to do the right thing just about always or most of the time," according to Pew Research.

"Americans have the most faith in local government (67%) and the least faith in the legislative branch of the federal government, or Congress (32%)," add Gallup pollsters. State governments fall between the two.

Americans seem ready to move decision-making closer to home, as locally as possible. For those of us inclined towards personal freedom let's not forget that the most local authority of all is the individual.