Associated Press
Sheriff Tim Mueller
From time to time, state and local officials may not like federal laws. Maybe it's Democratic local officials objecting to Republican policies, perhaps it's Republicans in municipalities who disapprove of Democratic policies, but since the Civil War, there hasn't been any credible debate about whether such laws are optional.
The sheriff of an Oregon county sent a letter to Vice President Joe Biden on Monday saying he and his deputies would not enforce -- nor allow federal officials to enforce -- any new federal firearms laws in his county, according to a copy of the letter posted on the Linn County Sheriff's Office website.
"Politicians are attempting to exploit the deaths of innocent victims by advocating for laws that would prevent honest, law abiding Americans from possessing certain firearms and ammunition magazines," Sheriff Tim Mueller wrote in the letter dated January 14, 2013. "Any federal regulation enacted by Congress or by executive order of the President offending the constitutional rights of my citizens shall not be enforced by me or by my deputies, nor will I permit the enforcement of any unconstitutional regulations or orders by federal officers within the borders of Linn County, Oregon."
As Mueller sees it, it's apparently not up to courts or judges to determine which laws are consistent with Americans' constitutional rights; it's instead up to a local sheriff. And if the local sheriff decides the law doesn't meet the standards of his constitutional analysis, he just won't enforce it.
To put it mildly, this is a problematic approach to a functioning democracy.
Similarly, there are new measures pending in the South Carolina and North Dakota state legislatures on ignoring new federal gun policies -- before policymakers even know what they are -- and Mississippi Gov. Phil Bryant (R) wants state legislation that would make any "unconstitutional order" on gun policy taken by President Obama "illegal to enforce in Mississippi by state and local law enforcement."
And who would decide which policies are "unconstitutional"?
Bryant didn't say, exactly. If courts rule a law unconstitutional, then it's a moot point -- no one enforces laws that are struck down -- but if the governor and legislature think they're the arbiters of constitutional analysis, there's a problem.
The rule of law still matters. So does separation of powers and judicial review. I have no idea what, if anything, Congress will pass to help prevent gun violence, but I do know state and local policymakers should realize that they're not in a position to pick and choose which laws they'll honor and which laws they'll ignore.
Update: It looks like some policymakers in Missouri and Texas are thinking along similar lines.
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Except that we are asking federal authorities ignore anti-pot laws in some states, aren't we?
No, we're not. And even if we were, laws can be changed, regulations can be altered, and it's OK to advocate for both; and that is a very different thing to local officials unilaterally deciding what is and isn't constitutional, or to state laws enacted with the explicit intent to subvert the supremacy clause.
I completely agree with the analysis in this article, but can someone explain to me (aside from the level of government involved here), how this differs from the DOJ declaring that they will not defend DOMA on the basis that it is unconstitutional? I hope DOMA is repealed or struck down by the courts, but it seems like an almost perfect parallel to the argument this silly sheriff is making.
1. Supremacy clause
2. There's a difference between defending the constitutionality of a challenged law in court, and enforcing that law. The Executive Branch has a separate and independent duty, as a co-equal branch of the Federal government, to "interpret and implement the Constitution." The stickier analogy is the competing state and Federal law re: drug prohibitions, for instance, or the Executive Branch choosing not to have the FBI enforce some other duly enacted Federal law. And of course there's a fine line between refusing to enforce and legitimate deprioritization based on limited resources. This yahoo in Oregon has no authority to determine whether or not any Congressional law or Presidential executive order is constitutional.
3. Furthermore, this guy actually said he will actively interfere with federal law enforcement officials if they attempt to enforce the law in his county. That's different than the federal Executive Branch telling the federal Legislative Branch they will refrain from enforcement of a law or defending it in court. It's an outright crime.
The real difference here is that Liberals expect everybody to live by their mandates, yet feel anything, lawful or not, that they don't agree with is not valid. Perfect example, Federal drug laws.
@chemdmd - projection much?
MCA,
That one always projects a lot!
chemdmd. This sheriff is not liberal. He's hard right. Fits right in with the teaparty.
Wow, can you imagine taking htis mentality to the extreme, having 50 individual states, as separate fiefdoms, then sub-fiefdoms with howver large number of counties each state would have? Thyen there would be boarder crossings needing visas to visit,, etc., etc., etc. The result, would be the haves states and haves not states. Then peiple would move to the state that have policies they support, the gun laws they want to have and enforce, the taxes they would be willing to pay, etc., etc., etc. Then each state would have to come up with their own military to protect their boarders, and maybe then they'd really have need for an armed militia and citizenry. And if there is a natural disaster or even an invasion from another country or state, each state would be responsible for their own rescue and recovery, and defense. Then why have a United States of America with Federal laws? To carry this scenario further, the stronger states would envelop the weaker neighboring states, then you'd have less states but with larger land areas, and possibly end up with maybe four to 6 super states that survived the economics of smaller populations, revenue, etc. For all it matters, the whole land mass may be taken over by a foreign power. Absurd? I would hope so. But, kinda seems that way, given how divided this country is on numerous issues, especially how divided Ciongress is currently. Rome lasted, was it 300 years? At this rate with the extreme beliefs and actions, wonder how long this country will last. If the concern is for a "my way or the highway result", we're doomed as a nation, because chaos will reign in the end, and we'd have gone by way of Rome....
Sheriff Mueller,
"I disapprove of what you say, but I will defend to your death your right to say it."
with apologies to the late E.B. Hall
The Supremacy clause is pretty concrete. Sometimes I wish it wasn't, especially in regards to the pointless and destructive drug war.
I love how the people screaming for this guy to lose his job are the same ones that are fine with "sanctuary" cities like SF ignoring federal immigration laws and states like CA and WA ignoring federal drug laws with "legalized" pot.
BTW, local sheriffs are not required to enforce federal law as they are not federal officers. Most do because they lose any federally provided funds if they don't.
Let's not pretend there's no difference between federal drug laws, in connection with which the federal government has actively turned a blind eye to lax enforcement regarding simple possession, and any proposed new gun safety legislation that presumably the FBI and BATF will have every desire to see enforced at a granular level. Or that your stated example, San Francisco, either does not have an active drug trafficking unit in its police force, or promises to repel DEA agents at the City limits.
If the United States government wants to protect its Supremacy Clause supremacy, then they can do so and the City of Boulder will get in line right quick. But the United States government actively chooses not to fight that battle on the front of pot possession, including under our immediate past President, who, if recollection serves, was not a flaming Liberal.
In addition, it would be wise to note the difference between sorting out the legitimate Supremacy Clause issues caused by a State enacting law contradictory to Federal enacted legislation, and a sheriff in Oregon deciding he gets to interpret whether Federal law is constitutional.
The rule of law still matters. So does separation of powers and judicial review. Well if President Obama doesn't feel this statement to be true, then I can see why local officials don't feel it necessary to follow King Obama's mandates. The three branches of the Government were put into place to balance the power. On several occasions President Obama has bypassed the House and Senate. He has showed a lack of respect to the authority of the Constitution, yet thinks those that adhere to it should obey is tyrannical rule. Makes no sense, but then again when has a liberal ever used logic?
Provide one example of President Obama taking unilateral executive action that either has been ruled unconstitutional in a federal court, or is of dubious constitutionality and has not been undertaken by other Presidents before him. Point to the authority on which you base your allegations.
MCA,
His "authority" is his own Ideological Soundness/Theological Correctness.
President Obama has signed fewer EO's than GWB signed at this point in his Presidency. And President Obam checks with his constitutional Attorneys prior to signing any. GWB just signed them.
Let's see... Sheriff of a small Oregon town vs the US Federal Law Enforcement apparatus...
Does the name "Custer" ring a bell?...
Doesn't matter. In SF the Feds still occasionally raid the dispensaries but local LE turns a blind eye to them so the Feds are enforcing the laws, but local LE isn't. Also the gov't in SF is on record stating they will not comply with Fed immigration law because they have unilaterally decided they are a "sanctuary city". Both of these cases are OK, but somehow this sheriff stating he won't enforce Fed gun laws isn't? Personally I don't believe that local LE is responsible for enforcing fed law, but then the locals shouldn't be surprised when fed funding dries up and fed LE show up to enforce the law either.
Just wondering....
If this sheriff decides not to enforce parts of the law and something happens in his county or outside of it as a result of his disregard of the law....let's say someone is injured or dies.....could he be held responsible?
If he wants to sit on his thumbs, no one cares. Where he screws up is by threatening to stop Federal officers from enforcing the law.
So very true. His jurisdiction ends where theirs begins. Interference with a federal investigation, even by local law enforcement, is a federal felony and can result in significant jail-time and loss of civil rights INCLUDING THE RIGHT TO KEEP AND BEAR ARMS! In most jurisdictions, a felon may not serve in law enforcement and is NOT a "qualified elector" making them ineligible to run for public office.
Sherriff Tim is kind of hot for an authority figure! Sorry, I know I went all 13 on you guys..
This is exactly what the far right has been endorsing for two decades. They have been supporting nullification since the Bush years. They call it states rights but it is an attempt to establish the primacy of the state over the Federal government. When they couldn't get this before we had a thing called the Civil War along with a half dozen Supreme Court decisions. They question the Federal government on everything from the ability to collect taxes to the regulation of assault weapons or to oversee anything from the environment to education. State Rights is simply a smokescreen to allow the moneyed interests who want a plutocracy not a democracy.
jkh
So they basically would like to be like the EU.....separate laws and connected only by the same currency? I hear that is working out well overseas!
Also you have to wonder what will happen the first time he orders one of his deputies to shoot an FBI agent...I bet the deputy refuses.
1. This sherrif will hold onto his job until some whack job with an illegal Bushmaster that should not have ever been sold to him kills a bunch of sherrif's deputies in a station-house ambush.
2. Yesterday on the RMS blog was a link to http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery which is a well-researched (the Founding Fathers' own writings, plus several substantial academic studies) history of the reason the "well-regulated militia" section of the 2nd Amendment was included. Those state militias were organized mostly in the South and primarily to quickly form posses to chase runaway slaves, put down slave revolts, etc. So, given that there is no longer any official slavery in the U.S., perhaps, not just because weapons are more lethal now but the need for gun-owning militias to control slaves has long since become obsolete. So my question now to my hyper gun owner friends and family is: "Oh, does that mean that you support slavery?"
3. So, is any law enforcement official who refuses to enforce Federal or State law regarding gun safety and ammunition control, doing so because s/he has a hidden agenda to bring back posses that control and kill their fellow human beings in the service of slavery?
I have seen the enemy and he is us.
How is it WE don't understand the government is WE?
As we are discussing near false analogies, how about when Bush told the SEC not to do it's job? Madoff, AIG, etc.?
or is it false near analogies?
There are a few issues here, mostly of jurisdiction and "duty to enforce." First and foremost, local law enforcement has no jurisdiction to enforce federal law. There is a tradition of local law enforcement holding a suspect until federal authorities can determine if they wish to prosecute, but no state, county or municipal court has jurisdiction to enforce federal law. A state or local law must have been violated for them to prosecute.
Prosecutorial discretion occurs at all levels of law enforcement and begins with the officer "taking" the initial report. In most jurisdictions (I'd say ALL but I haven't researched it that thoroughly), an officer is not required to enforce a law even when directly witnessing it. They have the first decision to enforce and many officers do not refer even half of crimes for prosecution. Then the agency decides if it wants to forward the incident to the prosecuting authority. The presiding "judge" can also dismiss any complaint for any reason, not the least of which is that it violates the US Constitution, the Supreme Law of the Land.
So while this letter to the President is provocative, the writer is well within legal precedent for doing as it says.
Disclaimer: I am not lawyer and am not licensed to practice law in any jurisdiction. The above is not intended to be used as legal advice of any kind. Any person using the above for any purpose does so at their own risk.
I forgot to mention that threats to federal officers in the performance of their duties is a felony.
A policeman deciding whether to arrest someone, or a prosecutor deciding whether to prosecute subsequent to the arrest, is not the same thing as a unilateral determination that a law is unconstitutional by someone without the authority (or even the qualifications) to make that call. No federal court would care about this Sheriff's legal opinions and neither should we.
Before the President's press conference, this Yokel rendered his opinon that the President was acting outside his constitutional authority. Even if he had the education, training and experience to make that determination it is not his to make.
Prosecutorial discretion is a serious doctrine, not based on whimsy, and is not the province of a policeman deciding not to give a ticket. You're confusing too many constitutional precepts here. Mueller is just out of his league and had nothing better to do then inject himself into the national conversation with a legal opinion that was not sought and which he is not qualified to render.
As Sheriff he is qualified to inform his staff that they are not to enforce federal law, to leave it to the appropriate federal agency to do so. He commits a felony in threatening to block federal officers in enforcing federal law.
He is also as qualified as you or I to voice an opinion on Constitutional matters. He has no authority to enforce that opinion and his office lends no gravitas to his opinion.
Ad Hominem attacks and name-calling are not civil discourse. Please try to be civil even in discussing persons you despise.
Actually, we do not know what his qualifications are to render constitutional opinions. One does not earn a law degree from Wikipedia or from watching Fox News. Mueller has neither the authority (nor has he shown the qualifications) to render anything anyone does as unconstitutional. Period.
Again, before the President had come out with anything specific, Mueller unilaterally decided he would not enforce "unconstitutional regulations or orders." Not based on any jurisdictional reasons that you have tried to come up for him, but because he had decided the President's actions were going to be unconstitutional before the President acted. And nothing you have looked up in a legal encyclopedia is going to change the fact that Mueller is simply grandstanding
and, much like Arpaio, is seeking media attention.
You should read the Heller case. Scalia makes clear that banning certain categories of weapons does not run afoul of the Second Amendment. Which is why the NRA never tested the Assault Weapons Ban in federal court. They knew they would lose. Unlike the clear falsehoods being spread by the NRA, the Second Amendment rights were never held to be absolute in any situation.
If a tragedy occurs in his county and he is still sheriff, then he'll pay the price with his job and reputation. Mostly likely this will be a local matter from here on out.
Just what we needed. A local sheriff has decided that he can unilaterally decide which laws to enforce and which to ignore. Mueller has decided that no matter what President Obama does regarding gun laws it will violate the constitution. Mueller says so without any legal basis, real argument, and without demonstrating the qualifications that would render his legal opinions credible.
Background checks, limitations on assault weapons and extended magazines, and the types of limited, reasonable measures the President has been discussing passes constitutional muster according to Scalia and a very conservative Supreme Court. In the Heller case, Scalia went out of his way to note that, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings..."
A respect for the rule of law would test whatever the adminstration comes up with in federal courts of law. But this County Sheriff has placed himself above the law, above the US Supreme Court which interprets the constitution Mueller claims to uphold. Mueller has made himself some sort of Supreme Ruler and all in the name of democracy and against tyrannical authority. NRA/Tea Party logic at its best.
The only authority Mueller appears to recognize is his own, and that which is granted him by the NRA. Wonderful quality in a man who wears a badge and a gun.
maybe shooter and the other wack jobs needs to see the bodies of the 20 childern killed, just maybe things would change
You are all such good little nazis arent you. Turn in your parents for having a gun send them to the concentration camps, tell on your neighbors heir bob has a 22 in his closet. Snitch on your friend for having a high capacity mag here comes the DHS to bash your skull in! Dont think it wont happen here! Who just murdered Aaron Schwartz my good little brown shirts? I'll tell you our corrupt American government! He died because he felt that the knowledge the socialists colleges with held needed to be made available to the public for free for the advancement of society. Take a good hard look at that one and thats all the reason you should need to keep and bare arms. Mr President FROM MY COLD DEAD HANDS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Actually, it will be from your still-warm hands, and with your attitude, that is highly likely to happen.
What about this Minnesota Sheriff?
Pine County Sheriff Robin Cole sent an open letter to residents this week, saying he doesn't believe the federal government has a right to order states to follow mandates that violate the U.S. Constitution.
Cole wrote that he would view any such mandate illegal and refuse to carry it out. He says he believes it is a “moral sin” to erode freedom through administrative rules.
Cole told The Associated Press on Wednesday that he is categorically opposed to any proposal that would infringe on one's constitutional rights. He says he wrote the letter because citizens have been afraid of what the future holds.
He says the issue doesn't apply to just guns.
But, in your quote, he does not say he will prevent federal
agents from enforcing federal law. That seems to be the kicker here. A local
policeman is not required to enforce federal law; I would imagine they are not
even required to assist federal agents. However, they are prevented from
hindering or blocking federal agents from enforcing federal law. That is what
the sheriff in Oregon said he would do and that is what could land him in
Federal prison. A shootout between Federal law enforcement and the local sheriff’s department would be an act of war and I think the Feds would win in the end.
Treason. Arrest the idiot sheriff.
I like to know what other laws these two Oregon Sheriff's have instructed their officers not to enforce?