Anti-Commandeering: James Madison’s Advice Put into Practice

The following post is excerpted from the script for Nullify: Season 1. Watch all the videos from this series at this link – and Become a member here to support the TAC.

To stop federal acts, James Madison recommended a “refusal to cooperate with officers of the Union.” Over 170 years of supreme court precedent supports this strategy too.

Known as the “anti-commandeering doctrine,” in four major cases dating back to 1842, the Supreme Court has held that the federal government cannot require states to use personnel or resources to help the federal government carry out its acts or regulatory programs.

In the 1842 Prigg case, Justice Joseph Story wrote that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.

In the 1992 New York case, Sandra Day O’Connor wrote that the feds cannot “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

In the 1997 Printz case, the court held that the “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.”

And in the 2012 Sebelius case, the court held that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”

This mirrors what James Madison advised in Federalist #46 – “a refusal to cooperate with officers of the Union” as an effective strategy to stop the federal government.

In a time when federal power is far more overextended than it was back then, this is no mere footnote from the “father of the Constitution.” This approach is not just legal under modern supreme court jurisprudence. It’s not just constitutional according to the founders. It’s good strategy, plain and simple.

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