William Connell Cawthon Jr.

Oklahoma’s defiance is not only constitutional, it’s legal

The proposed action in Oklahoma, as well as similar actions in a number of other states, is well within the bounds of the Constitution.

While it does challenge executive orders and acts of Congress, some of which are demonstrable overreach according to the powers delegated to the President and Congress, including those listed in Article 1, Section 8 of the Constitution, the actual bill says the state will ask for an exemption (presumably in conjunction with filing a lawsuit in federal court to have the actions declared unconstitutional) but the only action the state will take is to refuse to enforce, or offer any assistance to enforce, the laws it deems to be unconstitutional.

The federal government's authority to enforce such laws with its own resources is not challenged. As with the sanctuary laws in California, federal agents can enforce laws unfettered by any actions of the state. Surely, if what is contemplated in Oklahoma is unconstitutional, what has been enacted and signed into law in California is unconstitutional.

The precedent was set by Supreme Court anti-commandeering decisions in New York v. United States 505 U.S. 144 (1992) and Printz v. United States 521 U.S. 899 (1997), which said the federal government could not compel a state to enforce a federal law (New York) or compel a state official to enforce a federal law (Printz).

It is important to remember that the United States is a federated republic composed of 50 sovereign states with more actual power to regulate their citizens than the federal government.

Yes, the states can dictate to the federal government. The U.S. government is limited to powers delegated by the states and the people and those powers can be altered or limited by the states and the people. No civil war needed: it’s all completely legal.

The states have the power to change the federal government. They can convene a constitutional convention, whether Congress likes it or not; adopt an amendment, whether Congress approves it or not; ratify an amendment and that amendment will become the law of the land, no matter how much a President and Congress might object.

It takes 34 states to call a convention; 38 states to ratify a new amendment. Once again, no secession or Civil War required.

Contrary to Dr. Franks’ assertion, this didn't begin with Trump. I can trace the current state-level defiance of federal law back to the Alaska Firearms Freedom Act in 2010, during the Obama administration. The genesis of the California sanctuary laws, the California Trust Act, was passed in 2013, also during the Obama years.

The growth of the Second Amendment Sanctuary movement had its origins in the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) of 2013, also in the pre-Trump era. The registration requirement in the law had a non-compliance rate of more than 80% and it wasn't even enforced by some county officials. Similar results were reported for Connecticut, which passed a similar law.

The chart below shows the extent of resistance in America. Second Amendment Sanctuary counties generally defy state laws but also draw lines in the sand when it comes to federal laws, as well. States are defying the federal government in areas beyond gun control.

Chart with maps of the United States showing the extent of Second Amendment sanctuaries and the growth of constitutional carry.
Graphic copyright 2021 Bill Cawthon. All rights reserved.

The authority of states to impose restrictions or requirements during an epidemic was upheld by the Supreme Court in 1905 (Jacobson v. Massachusetts 197 U.S. 11). The authority of the federal government to impose similar restrictions or requirements has never been established and does not appear to be among the powers given to the federal government in the Constitution.

The federal government can blackmail states into compliance by threatening to reduce future budget allocations but that would set up a more serious confrontation that could lead to a new constitutional restriction on federal powers. The federal government was able to get away with it with the 55-mph speed limit, but the issues today are a bit more fundamental. And no one should forget what happened to that national speed limit. There are currently stretches of highway in west Texas with 80 mph speed limits.

If the federal government doesn't have the power, President Biden certainly doesn't have it, meaning his executive orders might be binding only on federal personnel, on federal property, and in states willing to comply.

Before presuming to declare something unconstitutional, Dr. Frank really needs to have a better understanding of the Constitution, as amended, and case law regarding the sovereign powers of the states. It also might help if she carefully reexamined Oklahoma HB1236.