Second and Tenth—a strong combo

At the Washoe County Republican Convention, the platform proposals on immigration drew heated debate. County Republicans are against Nevada becoming a sanctuary state.

Except it kinda already is.

Law enforcement in Nevada has stated that it will comply with any subpoena or otherwise lawful order to turn an inmate over to Immigration and Customs Enforcement (ICE) but does not generally comply with mere detainment requests.

At the heart of this refusal by states to ask “How high?” every time the feds say “Jump!” is a principle derived from the Tenth Amendment’s limits on federal power and protection of state powers from unlawful federal coercion. This is called the “anti-commandeering doctrine.”

In 1842, in Prigg v. Pennsylvania, Justice Joseph Story held that the federal government could not force states to carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government had to enforce it. The Tenth Amendment helped anti-slavery states protect runaway slaves.

As Justice Story wrote, “We held … that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

However, another principle found in Chief Justice John Marshall’s earlier case McCulloch vs. Maryland holds that states can neither tax or otherwise interfere with the federal government’s enforcement of its own valid laws, including immigration laws.

Courts may find California went too far with some, but certainly not all, of its California Values Act. Likely to be struck down: It forbids employers from cooperating with ICE. Whether allowing the states to inspect federal detention centers will survive judicial review is an interesting question.

If immigration restrictionists gain control of the Nevada state government in this election, the new Washoe County Republican platform supports passing laws like the Texas laws that require state agencies to actively assist federal law enforcement in enforcing federal immigration laws.

Proposed GOP platform planks to require immigration be merit-based and other similar amendments failed at the county convention. It remains to be seen how Nevada Republicans really feel about immigration. The platform welcomes legal immigrants with open arms. Republican nativists want much less legal immigration. The debate is not over.

The anti-commandeering doctrine was also dispositive in the case Printz v. United States (1997), where two Western sheriffs challenged parts of the 1993 Brady Handgun Violence Prevention Act. Justice Antonin Scalia wrote for the majority that the sheriffs could not be forced to use their own time and tax money implementing the federal Brady law. The Tenth Amendment helped the states defend the Second Amendment.

Nevada Republicans could use rhetorical judo to make Nevada a Second Amendment sanctuary state. The Tenth Amendment protects both red and blue states against overreaching federal power.

Consistent constitutional conservatives understand that the Tenth Amendment protects the rights of states to ignore but not interfere with federal laws. The Tenth Amendment has protected states that legalized marijuana and now will likely protect California’s core sanctuary state laws. The left should no longer believe that state nullification powers are only used by racists. Conservatives should be consistent in looking for federalist approaches to problem solving.