Robert L. Tsai is Professor of Law at American University and author of America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard 2014).



When President Donald Trump pardoned Sheriff Joe Arpaio, calling him a “patriot,” he didn’t just absolve him from the consequences of defying a federal judge. He didn’t merely excuse Arpaio’s racial profiling and illegal immigration sweeps. Trump’s pardon did do all of that. But it also did something more: It boosted a radical theory of law and American history that Arpaio supports, and which is gaining steam across the United States.

It’s called the “constitutional sheriff” movement, and as it grows, it’s increasing the risk of conflict between local law enforcement and federal authorities. Its animating idea is that a sheriff holds ultimate law-enforcement authority in his county—outranking even the federal government within its borders. Though the movement claims deep history in English law, its real roots lie in the more recent fringes of American right-wing thought. And its popularity helps explain why Arpaio’s defiance of federal law shouldn’t be seen as just one grandstanding sheriff crossing a line, but instead should be seen as part of a broader grassroots resistance to constitutional and cultural upheavals during the 20th century.


The strange idea that unites all members of this movement is that a sheriff is the highest law enforcement officer within a county’s borders—superior not only to local police, but also to officers and agents of the federal government. The actual influence of sheriff supremacy is hard to measure, but it has been growing in recent years, and today the official constitutional sheriffs’ association boasts 4,500 dues paying members and over 200 sheriffs. Its highest-profile members include Arpaio and David Clarke, who just resigned as sheriff of Milwaukee County, Wisconsin, reportedly to help Trump in some capacity.

But those figures may underestimate how far its influence extends, and how fully it pervades certain regions of the country. In 2013, Arpaio joined nearly 500 other sheriffs who vowed not to obey any federal law that required them to confiscate guns from private citizens. In Utah, 28 of 30 sheriffs went even further, warning that “[n]o federal official will be permitted to descend upon our constituents and take from them what the Bill of Rights—in particular Amendment II—has given them.”

The constitutional sheriff movement arose from the ashes of the far-right, anti-semitic Posse Comitatus movement of the 1970s and 80s, led by William Potter Gale. The insignia favored by these Christian Patriots was a redesigned sheriff’s badge containing a noose, Bible and sword, to reflect their belief that sheriffs were responsible for the armed defense of citizens and higher law (a combination of their view of the Constitution and Christian Identity teachings). Before the movement collapsed with Gale’s death, its paramilitary figures developed an anti-tax, anti-government agenda that stoked conspiracy theories that Jews were responsible for oppressing farmers through crushing taxes and exorbitant loans. Its foot soldiers gained notoriety when they tried to stop foreclosures in the Midwest and engaged in shootouts with U.S. marshals.

The modern constitutional sheriff movement has revived the idea of sheriff supremacy envisioned by the Christian Patriots, tried to shed its anti-Semitic and racist origins, and now seeks to “take back America county by county, state by state.” Today, its ideology has gained traction with the militia movement, so-called sovereign citizens, separatists wary of centralized government—and increasingly, landowners, county commissioners, veterans and law enforcement figures. Cliven Bundy, who has clashed for years with the Bureau of Land Management, is an adherent of sheriff supremacy. In 2014, he demanded that the local sheriff step in and protect him from federal agents: “Sheriff, this is what We the People are asking this morning. Disarm the Park Service at …parks where the federal government claims they have jurisdiction.” One of his sons, Ryan Bundy, later said on TV, “The county sheriff is the only person that We the People have allowed to have policing power.”

As these unorthodox ideas have spread, politicians and lawmen have played boldly to anti-government sentiment, especially fears of federal officials intruding on property rights and gun rights. In 2014, Lora Hubbel, a candidate to become governor of South Dakota, told an audience: “The sheriff is the highest law officer in the county….Your county sheriff can tell the federal government ‘No, you can’t cross into my county.’ Your local sheriff is your best protection against the federal government.”

A number of candidates for sheriff or county commissioner around the country have campaigned explicitly on county-first theories of legal power. In New Hampshire, a businessman named Frank Szabo vowed to serve Hillsborough County as a constitutional sheriff who would defend citizens from “rogue federal and state agencies.” He even said he would be open to using deadly force to stop an abortion. And during the tense standoff in the Malheur National Wildlife Refuge between Ammon Bundy’s armed men and federal agents, Glenn Palmer, a constitutional sheriff in Grant County, Oregon, praised the occupiers as “patriots.” Some, like Szabo and Hubbel, have lost elections when constituents recoil from the practical consequences of sheriff supremacy; others, like Arpaio, have been rewarded for their militancy.

Michael Barkun, an expert on political extremism, has termed this philosophy “radical localism,” because it valorizes and exploits subnational sources of power. In theory, that kind of localism could be a vehicle for many kinds of politics, but in practice constitutional sheriffs and their followers tend to occupy the edges of anti-government conservatism, organizing themselves to promote gun rights and property rights, to resist tax laws, national healthcare, gay marriage—and in Arpaio’s case, to implement a muscular view of border security. The enforcement policies of constitutional sheriffs aren’t neutral, but instead reflect a traditionalist and often apocalyptic worldview.

Do they have a point, at least in principle? The Constitutional Sheriffs claim to be supported by long tradition, but in fact sheriff supremacy is based on a faulty reading of history. Where states’ rights has some support in the text and history of the Constitution (notably in the 10th Amendment, but limited by the Reconstruction Amendments), the idea of sheriff supremacy does not: It has been made up by stitching together random references to sheriffs and militias in our political and legal texts. It relies on a highly selective reading of history, pretending that the high sheriff of the English shire was transplanted to colonial America, and then somehow emerged in the present day untouched by legal developments over the past 200 years.

In fact, in colonial America, most sheriffs were appointed by the Crown or landowners rather than elected by the people. The turn toward direct election of sheriffs came later, as part of the reforms of Jacksonian democracy. The militant orientation of the modern movement also comes from elevating the right to bear arms above all other rights, while treating the Second Amendment as if it codified the militia as a constitutional entity on par with Congress, the president, or the Supreme Court. It didn’t do that—not even close. And the sheriff supremacists never mention the 14th Amendment, which guaranteed equality and due process as part of the rights of national citizenship, and imposed new limits on states (and, by extension, local authorities).

Despite the “constitutional” label, sheriff supremacy makes mincemeat out of the framers’ constitutional design. The most basic principle of the original American Constitution is that of federal supremacy: When an irreconcilable conflict emerges between federal law and a subordinate source of law, federal law prevails. The office of sheriff itself is a creature of state constitutions and state law rather than some unchanging “common law” that supersedes federal law. Under long-standing constitutional principles, the federal government’s power to implement national policy reaches wherever is necessary to make that policy effective, as long as it doesn’t contravene a specific power that has been reserved for the states.

Nowhere did the framers explicitly authorize local government officials and lawmen to act as final authorities on the Constitution’s meaning. That would have run counter to every impulse they had in creating a stronger, more effective national government, and a coherent and consistent rule of law. The very thought of hundreds or thousands of armed individuals (there are over 3,000 sheriffs nationwide) each claiming the last word on the Constitution would have sent shudders through the men who met in Philadelphia.

The ideology of sheriff supremacy has attracted supporters largely by trading on popular suspicion of the federal government and disgust with land management policies. And, not surprisingly, the belief system has ended up encouraging clashes between sheriffs and the laws of their own state. In March 2013, Nick Finch, the sheriff of Liberty County, Florida, refused to enforce a state law that banned carrying a concealed weapon without a license. The sheriff’s reason for releasing the man from jail and allegedly altering the arrest records: “I know what law rules the day, and it’s the U.S. Constitution.” When word got out, Governor Rick Scott suspended Finch and the state charged him with official misconduct. Finch was eventually reinstated after a jury refused to convict. During trial, Finch’s lawyer had invited the jury to engage in nullification: “There ain’t many of y’all, but you have your own common code or beliefs ... It’s a way of life over here for people to own guns ... There’s a distinct possibility that, every now and then, one of y’all is going to make a mistake and he doesn’t want to create a convicted felon out of an incident that could be misunderstood.”

The costs of friction caused by sheriff supremacy can be high, and they always end up falling squarely on a sheriff’s constituents. Though a sheriff might sweep into office by promising to protect local taxpayers, overly aggressive tactics can backfire by leading to expensive lawsuits. One estimate put Maricopa County taxpayers on the hook for over $70 million dollars to defend Arpaio’s policies.

The face of the constitutional sheriff movement today is Richard Mack, who like Arpaio was once a sheriff in Arizona. Mack is the author of the pamphlet, Constitutional Sheriff: America’s Last Hope, which Arpaio has urged every citizen, police officer and sheriff to read (the entire back cover, in fact, is taken up with a plug by Arpaio.) In his pamphlet, Mack urges lawmen to save America from “a growing Marxist creed ... political whining for universal health care, gun control, forced equality through governmental redistribution of wealth, and the removal of religious beliefs and expressions from our public institutions.” The county sheriff, according to Mack, “is our nation’s last line of defense” against these changes. But “the greatest threat we face, as a nation,” he says, “is our own Federal Government.”

In 2011, Mack, with the help of Arpaio and others, founded the Constitutional Sheriffs and Peace Officers Association. “We’re not mainstream,” Mack has confessed. CSPOA believes that “America needs to make a strong turn around to get back on the freedom track laid for us by our Founders” and that the county sheriff “is the last hope of making this happen.” The organization advocates “protection, service, and interposition” by sheriffs to protect citizen’s rights, and trains sheriffs and deputies how to engage in alternative tactics to resist the federal government.

If that word “interposition” sounds familiar, it’s because the concept was made famous in the 1950s when state officials tried to prevent racial integration by interposing themselves between white citizens and federal troops sent to enforce orders by federal judges. It’s also closely related to the older idea of nullifying laws believed to be unconstitutional—again, popularized by slave states such as South Carolina that opposed any regulation of that practice. Ironically, the militant abolitionist John Brown—hated during his day by law enforcement—was sometimes described by supporters as interposing himself and his men between the bodies of defenseless slaves and their owners, slave catchers, and the Slave Power that had corrupted the federal government.

For today’s constitutional sheriffs, interposition means demanding that federal agents obtain permission from a sheriff before conducting business in a county, and perhaps barring their way if consent is not given. It means stepping in between the government and county residents “to keep those at bay who would confiscate bank accounts, guns, land, property, and children.” It might also mean ignoring what “the County Attorney advises the sheriff to do” because they believe a sheriff “has no obligation to go along with those who subvert the Constitution.”



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While in office, Arpaio behaved like what you would expect of someone who subscribed to sheriff supremacy. He consistently referred to himself as a “constitutional sheriff.” His office regularly issued news releases asking for more armed volunteers for his Maricopa County posse, which is understood to be a representation of the people and the measure of a sheriff’s potency to resist tyranny. The bigger a sheriff’s militia, the more faith residents have that external threats can be resisted. In fact, Arpaio bragged that his office operated 52 separate posse groups with nearly 400 armed volunteers. He used posses to patrol shopping malls and even called for armed citizens to “take action” against mass shooters and terrorists. In 2012, CSPOA gave Arpaio a lifetime achievement award.

Whenever Arpaio wanted to strike a defiant tone, as he did once federal judges and the Department of Justice had had enough, he always returned to the provocative idea of sheriff supremacy. After a federal judge ruled that Arpaio lacked authority under state law or federal law to detain undocumented migrants, he simply flouted judicial orders and ignored his attorney’s advice because he disagreed with the judge’s interpretation of the Constitution. “I will continue to enforce illegal immigration laws,” he brazenly announced. Arpaio declared that he would “never give in to control by the federal government” and would not “back down.” He even came up with a secret backup plan to turn over captured migrants to Border Patrol instead of ICE to evade a judge’s orders to cease and desist immigration enforcement.

Trump’s pardon of Arpaio didn’t just let the sheriff off the hook; it short-circuited the part of the American judicial process designed to hold government accountable, and resolve conflicts between levels of government. It began when a class-action lawsuit was filed in 2007 by individuals who claimed they had been racially profiled during Arpaio’s immigration raids and traffic stops. In 2012, the DOJ intervened in the case to vindicate federal interests in ending discriminatory policing, to stop Arpaio from retaliating against his critics in violation of the First Amendment, and to ensure that non-English detainees didn’t forfeit their rights without understanding them. Arpaio lost the first case and settled with DOJ, but was held in civil contempt of court for continuing to capture migrants without legal authority and for failing to turn over records of these encounters.

Acting on a referral from the federal judge overseeing the case, the DOJ eventually sought to hold Arpaio accountable for criminal contempt after Arpaio’s recalcitrance continued. A second judge tried the case and convicted Arpaio, finding that he had “willfully violated the [earlier] order by failing to do anything to ensure his subordinates' compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” Trump pardoned Arpaio just days before he was to be sentenced.

During the legal proceedings, Arpaio made the puzzling assertion that he had never violated his oath of office, despite having ignored direct orders from a federal judge. As far as he was concerned, the oath of office gave him the right, indeed even the responsibility, to ignore the federal court. He was merely doing the rightful job of a sheriff, enforcing the laws and Constitution as he saw them, unaccountable to anyone but himself. Now that Arpaio has been pardoned, his place in the pantheon of constitutional sheriffs is secure. And his view of American law and history—one shared by kindred spirits, and one that menaces not just federal law but the Constitution itself—just got a troubling endorsement from the president of the United States.