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The Founders intended states to serve as bulwarks against the risk of federal tyranny, though the record on that front has been more than mixed. Too often, state officials have invoked state sovereignty as cover for violating the civil rights of their own residents.
But now, as a dictatorial president sends thousands of militarized federal officers into the streets of American cities where they are terrorizing, kidnapping, and now killing their residents, our federalism is being put to one of its greatest tests since the Civil War.
The question we face is whether the nation’s sovereign states will use their constitutional authority to protect the rights of citizens against a tyrannical federal regime, including by holding federal officers responsible for their crimes.
The sovereign states
Under the Constitution, states are sovereign, with plenary “police powers” that include the primary responsibility for criminal law enforcement within their borders. In contrast, the federal government’s powers are “enumerated” and purportedly limited, particularly where local law enforcement is concerned.
The Trumpist phenomenon of the federal government imposing itself on states over the opposition of their residents, threatening their elected leaders with bogus criminal charges, and demanding that local police officers “stand down and surrender” is at odds with the fundamental structure of our government and puts Americans at risk. Republicans once seemed to understand this.
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Conservatives long warned against what Reagan Attorney General Ed Meese called the “Dangerous Federalization of Crime,” and the “pernicious aggrandizement” of states’ police powers, which Meese claimed “endangers the constitutional principle of decentralized law enforcement authority that has worked well in America and that has been a bulwark against the centralization of police power at the national level.” William Rehnquist, who Reagan appointed to serve as chief justice, went so far as to author an opinion striking down a federal law criminalizing the possession of guns near schools on grounds that it exceeded the power of the federal government to regulate interstate commerce.
But Meese and Rehnquist could not have imagined a militarized federal legion, acting at the direction of a tyrannical president, invading major American cities in the name of going after “criminals.”