Refusing to enforce constitutionally dubious legislation is no better when they do it.

Illustrating its remarkable talent for arriving late to a story and yet treating its contribution as if it were a revelation, the New York Times yesterday noticed that there are sheriffs in America who are refusing to enforce the laws. In Colorado, New York, Florida, and California, the Times explained breathlessly, sheriffs have simply said “no” to new gun-control measures, preferring instead to elevate their personal interpretations of the Second Amendment above the discipline of the statute book. “In my oath,” one Sherriff Cooke of Greely, Colo., claims, “it says I’ll uphold the U.S. Constitution and the Constitution of the State of Colorado. It doesn’t say I have to uphold every law passed by the Legislature.”


Sherriff Cooke is, alas, no relation. But, family or not, I have a great deal of sympathy for his position. Since Colorado passed its nasty little collection of knee-jerk gun-control measures earlier in the year, Cooke has been expected to enforce laws that are effectively unenforceable, and to do so over the vocal opposition of a citizenry on whose trust he relies. He is justifiably vexed. Holding up two ostensibly identical magazines — one legal and one not — the Times has Cooke asking in desperation, “How is a deputy or an officer supposed to know which is which?” Honestly, I don’t know. It’s a mess.

Nevertheless, that Cooke’s instinct is the right one does not mean that his conclusion is prudent. Prosecutorial discretion is one thing; a blanket refusal to abide by the rules is quite another. Indeed, much as it vexes me to admit, Andrew Cuomo got it right when he worried aloud that the refusal of two sheriffs in his state to enforce his state’s execrable SAFE Act could set “a dangerous and frightening precedent.” There is, after all, a reason that we establish firm processes by which our laws are passed, by which our elections are conducted, and by which our business is done. There is a reason that we render sacred the documents that outline the structure and power of our governments, that we wall off those areas into which they cannot intrude, and — most important — that we react with such indignation when the powerful simply flout the rules. It matters.


Ultimately, what distinguishes the Anglo-American tradition is its lack in its legal system of that most potent enemy of ordered liberty: caprice. When the British grumble that “it’s a free country,” they are primarily referring to the integrity of their institutions, which they believe to be fair. In Soviet Russia, families lay awake waiting for the knock on the door, knowing that if it came they would have little recourse. There, as in 1984, the law was precisely what those in power said that it was. If four was five and not four at all, then four was five; if the party said that you were guilty of a crime that wasn’t even a crime, then you were guilty. In the West, by contrast, there is the law. “You can’t do this to me,” a citizen might say, pointing to the rules. “It says so here, dammit.”


It would be naïve to believe that this how it always works in practice. Credulous, too, to suppose that there are not times when the entire edifice goes out the window. “I was just following orders” is no more acceptable an excuse for enabling tyranny today that it was in 1945, and, as the American experience teaches as well as any, one sometimes has a duty to resist. Nevertheless, there is an awful lot of space between where we are now and the point at which one has no option but to blow up the regime. Americans, as Thomas Jefferson put it, “should separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers.” We are not to believe, are we, that we are there?


Indeed, Sheriff Cooke still has a host of other options. In November, a judge ruled that he and 55 other Colorado sheriffs didn’t have standing to sue the state over the new laws, but that the 21 other plaintiffs did. That fight continues. In the past four months, meanwhile, three of the lawmakers who voted for the measures have been removed by dissatisfied citizens. New elections will be held next year. “Governments long established should not be changed for light and transient causes,” holds the Declaration of Independence. The Second Amendment is vital. But so is the rule of law.


Nevertheless, one can’t help but feel that the advocates of order are having the carpet whipped from under them by the public behavior of their commander-in-chief. In the Times’ story, a sheriff who is obeying the rules slammed the selective enforcement with which some of his colleagues have dallied: “A lot of sheriffs are claiming the Constitution, saying that they’re not going to enforce this because they personally believe it violates the Second Amendment,” he said. “But that stance in and of itself violates the Constitution.” It does, yes. But this is precisely the example that the president, whose constitutional duties include enforcing the law, has been busy setting the country for the last five years. Can we really be so surprised that other law-enforcement officials show the same contempt?

When a public figure such as Sheriff Cooke makes a statement indicating that he will refuse to enforce the law, progressives are quick to dress him up in the clothes of John Calhoun. And when the president does it? Well, then he’s merely exercising his “discretion.” This is a double standard that cannot be allowed to stand.


The problem with what the president is doing,” George Washington University Law professor and staunch progressive, Jonathan Turley, argued recently, “is that he’s not simply posing a danger to the constitutional system” but that “he’s 3becoming the very danger the Constitution was designed to avoid. “We have,” Turley continued, “what many once called an imperial presidency model.”

It is a shame that we are still fighting this fight, for the principle to which Turley refers was supposed to have been settled more than three centuries ago. During the Glorious Revolution, the British parliament tired of King James II’s claim to unfettered royal prerogative and codified into the 1689 English Bill of Rights that the executive’s “pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.” As all good students of history know, when the American founders came to write their own charter, they made sure to emulate this precept, establishing in Article II, Section 3 that the chief executive “shall take Care that the Laws be faithfully executed.” Setting priorities, allocating resources, and determining strategy? That was fine. Departing from the law completely? Prohibited.

In the last couple of years, President Obama has announced, inter alia, that he will not enforce immigration law against certain illegal aliens– not merely ignoring them in favor of higher-profile cases, but effectively creating a new immigration category; he has indicated that he will not enforce Obamacare’s employer mandate or its “essential benefits” provision, both of which were passed by Congress; and he has decided, too, that he will not enforce the law against medical-marijuana users or suppliers in states where medical use is legal. As with our recalcitrant sheriffs, the merits of these decisions are beside the point. Enforcing the law means just that — whether you like it or not.


The president has got away with some of the more flagrant presidential law-breaking of recent years in part because his ideological allies care more about getting their way than they do about upholding the system of government — but also because there is little legal recourse on which the disconcerted can rely. “If the president says we’re not going to enforce the law, there’s really nothing anyone can do about it,” UPenn professor of constitutional law Kermit Roosevelt told Politico impotently last year. “It’s clearly a political calculation.”

This is true, insofar as the material question is “well, who’s going to sue?” But that, I’d venture, is not the material question. Liberty, the rule of law, and stable institutions rely as much on habit as they do on constitutional structure, and, being contingent primarily on a willingness of the heart, they require constant reinforcement. The New York Times is correct to worry about a few rogue law-enforcement officers awarding themselves vetoes, but, before it clutches its pearls and shrieks hysterically about the stubborn behavior out in the boonies, it might first pay closer attention to the man who has been playing the same game — across the whole country, with many of its more influential institutions cheering him on to boot.

— Charles C. W. Cooke is a staff writer at National Review.