A few weeks ago, I wrote an article arguing that provisions in nullification bills directing state and local law enforcement officers to arrested federal agents for violations of the Constitution represent a "poison pill."
But as much as we might like to see our friendly neighborhood ATF agent sitting in the back of a squad car with his hands wrenched behind his back, including criminal penalties on federal agents in nullification bills amounts to a legislative poison pill.
And they will never have any practical effect in today's legal system.
An e-mailer took issue with my position and argued that, at least in Missouri, bills with arrest provisions could have a practical effect because voters can hold state judges accountable to voters through a removal process.
Yes, the attorney for the ATF officer will make a motion to move the case to Federal court, but the state judge is not required to grant the motion. Here in Missouri our judges face a retention election every few years. A judge who granted the motion would find that there was a campaign to remove him from office the next time he was on the ballot. The word "may" is permissive.
In the meantime, though, an ATF agent will find his name all over the news, and probably pictures of him in handcuffs. Will that deter other ATF agents from enforcing the unconstitutional laws, or will it make them want revenge? Who knows. Either way, though, the discussion will be quite public, and that is a good thing.
To some degree, the e-mailer's strategy mirrors the thinking of some abolitionists during the fugitive slave era. They advocated for the arrest of federal marshals engaged in fugitive slave rendition on kidnapping charges. They conceded that the arrests would almost certainly not lead to a conviction, or even an attempt at prosecution. But they reasoned that even if quickly released, the repetitive arrest of federal marshals would gum up the works and create a hindrance to the capture and return of fugitives in and of itself.
So, the arrest of federal agents could have an impact in the way my critic envisions. It could potentially deter enforcement of a given unconstitutional federal act, and it would certainly spark vigorous public discussion.
But a problem remains. No state seems to possess the will to carry out such a program. Missouri failed twice to enact legislation protecting the Second Amendment that included penalties on federal agents. The first time, both houses of the legislature passed a bill, but they could not overcome the governor's veto. Last legislative session, political pressure led to the removal of penalties, and the existence of penalties on state officials was a factor in the legislature's failure to give the Second Amendment Preservation Act final approval.
My e-mailer fails to take into account that his argument hangs on the assumption that the legislature can get this type of measure passed. It assumes a great deal of political will that doesn't seem to exist. As I wrote in the original article, "If you want to guarantee a bill dies a quick death, include penalties on federal agents. I've witnessed this time and time again over the last few years. A piece of legislation can feature nine really strong provisions that the majority of lawmakers in a legislature will get behind, and the bill will never see the light of day because of the penalties."
Missouri went for the gusto and ultimately ended up with nothing – twice. Arrest provisions doom bills that would otherwise pass. So, despite any value you might find in legislation with arrest "teeth," it becomes a liability when it guarantees failure. Passing a bill without teeth to lay the groundwork and then working toward stronger measures in future sessions constitutes and much more viable strategy.
One also has to consider the position arrest provisions directed at federal agents would place on state and local law enforcement officers tasked to carry out the policy. Since under 8 U.S. Code § 111, federal prosecutors can charge any person interfering with a federal officer, it becomes highly unlikely that local LEOs would risk their life and family to carry out the arrest. This fact compounds the problem of political will. Few lawmakers will stake out a position that places state and local law enforcement officers in harm's way.
While passing bills with teeth does create some strategic possibilities, the idea still remains problematic because of the lack of political will. Activists should instead focus energy on promoting anti-commandeering legislation that stands a chance of approval as a start. Then build on the success with more education leading to stronger actions down the road.