Last week, a venerable three-judge panel of the United States Court of Appeals for the Eighth Circuit issued a well-intentioned but analytically confounding ruling in a highly contentious dispute between the federal government and the State of Missouri. The suit involves the constitutionality of Missouri’s 2023 enactment of a “Second Amendment Preservation Act” (SAPA) that seeks to protect gun rights in Missouri. While the Eighth Circuit’s result may (or may not) have been correct, the opinion’s reasoning reflects unclarity about constitutional first principles that are very much worth straightening out, which is why I won’t be remotely surprised if the Supreme Court ends up taking the case.
As I explained in a column shortly after a federal district court struck down and enjoined implementation of Missouri’s statute, SAPA’s preamble (a section styled as “findings”) declares that the “supremacy” of federal law “does not extend to various federal statutes, executive orders, [etc., that regulate firearms and ammunition in various ways].” SAPA, in Mo. Rev. Stat. §§ 1.410, 1.420, and 1.430, asserts that certain categories of federal firearm laws (identified with less than perfect clarity) “shall be considered infringements of the people’s right to keep and bear arms [under the federal Second Amendment and the Missouri Constitution’s analogous provision]” such that these federal laws “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.” From this premise, SAPA directs Missouri courts and law enforcement agencies to “protect the rights of law-abiding citizens to keep and bear arms” within Missouri.
SAPA then goes on to, as the Missouri Supreme Court later put it, “enforce these legislative declarations” by, among other things, removing from “Missouri entities, persons, public officers, state employees and political subdivisions ‘the authority to enforce or attempt to enforce any’ federal gun law” covered by SAPA’s declaration of invalidity. SAPA also imposes liability on any “political subdivision or law enforcement agency that knowingly employs an individual [who is] acting or who previously acted as an official, agent, employee or deputy of the government of the United States . . . [and] who has knowingly either ‘enforced or attempted to enforce’ [any of the federal gun laws that SAPA has declared invalid.”
The United States sued Missouri officials in federal court to invalidate each and every provision in SAPA, and to obtain declaratory and injunctive relief by the federal court to make clear that “state and local officials [in Missouri] may lawfully participate in joint federal task forces, assist in the investigation and enforcement of federal firearm crimes, and fully share information with the Federal Government without fear of SAPA’s penalties.” The federal district court ruled in the federal government’s favor and granted the requested relief. Last week’s Eighth Circuit panel affirmed.
The heart of the federal government’s challenge—and the Eighth Circuit’s embrace of the challenge—was (as the Eighth Circuit put it) the way in which SAPA allegedly “impeded the federal government’s ability to enforce federal law by causing state officials to withdraw from participation in joint task forces with federal law enforcement, by disrupting information sharing between state and federal officers, and by causing confusion about the status of federal firearm regulations in the State.” In this regard, the (only) injury-in-fact the Eighth Circuit credited for purposes of establishing the United States’s standing to sue was the impairment of the federal interest in enforcing federal law caused by Missouri’s “withdr[awal of] resources and manpower that [could have] further[ed] the enforcement of federal law.” Relatedly, this injury was redressable in federal court to the extent that an injunction against Missouri officials could “enjoin them from withdrawing on th[e] basis [of SAPA].”
Missouri defended its decision not to participate in federal enforcement by pointing out that, under settled Supreme Court doctrine (especially Printz v. United States), a “State may constitutionally withdraw the authority of state officers to enforce federal law.” Given this, Missouri said, SAPA’s decision to withhold state assistance in the enforcement of the federal enactments in question was perfectly constitutionally permissible.
The Eighth Circuit rejected this argument, and it is in their explanation for doing so that the judges may have gotten off track. According to the panel, while a state can seek to accomplish the “ends” of discontinuing support for federal enforcement, it cannot do so by SAPA’s impermissible “means.” Per their opinion:
That Missouri may lawfully withhold its assistance from federal law enforcement . . . does not mean that the State may do so by purporting to invalidate federal law. . . . Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be [, as the Court observed in McCulloch v. Maryland,] ‘consistent with the letter and spirit of the [C]onstitution.‘” Missouri’s assertion that [certain] federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the federal enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision (citations omitted and emphasis added).
Based on its belief that Missouri’s choice to withdraw enforcement support was constitutionally impermissible because it was based upon “Missouri’s [belief and] assertion that [certain] federal laws are invalid to this State,” the Eighth Circuit went on to invalidate the rest of SAPA, concluding that “the entire Act is founded on [Missouri’s assertion of] the invalidity of federal law.”
But was this reasoning persuasive? For starters, note that the Eighth Circuit used “means” in a way that focused not on the mechanism by which Missouri withdrew support—which was simply a bland provision removing state-law authorization to assist—but on the fact that Missouri’s decision to withdraw support was seemingly grounded on its legislative assertion in SAPA that federal enactments were “invalid to” the State. In other words, the Eighth Circuit found wanting Missouri’s decision to enact a law embodying a statement of invalidity and then withdraw support on that premise.
All of this puts front and center the key question: were Missouri’s premises for withdrawing support constitutionally problematic, and if so why?
Certainly a state government can come to the view that a federal enactment is unconstitutional and assert that invalidity of federal law in many contexts. There is nothing invidious about that. When a state sues the federal government, it is making such assertions. Even outside the context of litigation, a state could certainly issue a proclamation of its belief in the invalidity of certain federal laws and do nothing more. A declaration by a state to the effect that “We declare these [specific] laws to be in excess of federal power and thus invalid, but we intend no consequences—other than political mobilization—from our assertion” would be unproblematic. Indeed, such a declaration by a state would be similar to, and indeed less aggressive than, the famous Virginia and Kentucky Resolutions enacted in the wake of the federal Alien and Sedition Acts in the nation’s early years, which one prominent commentator astutely pointed out were “strikingly consistent with [founders’] vision of state legislatures as political watchdogs.”
So Missouri’s assertion of federal illegality, without more, would not violate federal supremacy principles. True, as the district court whose judgment the Eighth Circuit affirmed said, “states have no power . . . to retard, impede, burden or in any manner control the operations” of the federal government in arenas where the federal government has lawful power. But a declaration of federal invalidity simpliciter does none of these things. (This is not to suggest that a state may never implicate constitutional limitations by mere assertions, for example, concerning religion or race. Such proclamations, even without more, might run afoul of certain constitutional provisions such as the First Amendment or Equal Protection. But none of that has to do with federal-state relations. One might also try to argue that a state’s assertion that a federal statute is unconstitutional and thus lacking in validity and supremacy is different than the state’s enacting a statute making the federal statute “invalid to this state.” But absent demonstration of legally cognizable consequences—arising from the form of the state’s pronouncements—that impede the federal government’s ability to accomplish its objectives, or any showing of why “invalid to this state” are magical words that somehow cross a Supremacy Clause line, neither of which the Eighth Circuit offers, it’s hard to see how this distinction does or should matter to the Eighth Circuit or anyone else.)
Of course Missouri (in the part of SAPA the Eighth Circuit found wanting) did go beyond pure speech, in that, based on its professed beliefs about the invalidity of federal law, Missouri acted by withdrawing state enforcement support, by removing state-law authorization for state enforcement officials to assist. The Eighth Circuit acknowledged that such withdrawal of support is ordinarily unproblematic, if, say, a state based its withdrawal on a disagreement over the wisdom of the policy embodied in a federal law. So Missouri could permissibly declare, “We think [a particular federal] law is unwise and so we won’t lend a hand to enforce it.”
This brings us to the heart of the matter. Missouri can (unproblematically) say and believe a federal law is unconstitutional, and it can (again, unproblematically) decline as a general matter to offer enforcement support. But, according to the Eighth Circuit, a state can’t do the latter permissible thing if the state is basing its decision to do so on the former permissible thing.
Let us put aside the ease with which a state could seemingly sidestep the Eighth Circuit’s limitations, e.g., by reenacting a bill like SAPA but replacing (or supplementing?) constitutional objections with ones based on policy. Unlike a wrongful motivation under equal protection or free speech or in some other settings, which cannot easily be cured because a revised action may still arouse suspicions, a state’s (allegedly problematic) belief that a federal law is unconstitutional would almost always be sincerely coupled with a belief the law is unwise. Even absent such available circumventions (which themselves might raise doubt about the Eighth Circuit’s reasoning), can it possibly be that a state can deny enforcement assistance because it believes a federal enactment is “bad” in the sense that it is bad policy, but not because the state thinks the federal enactment is a bad law because it exceeds federal authority? Isn’t exceeding constitutional boundaries even worse than exceeding the boundaries of good policy judgment? Indeed, aren’t qualms about constitutionality more valid—not less valid—reasons for withholding enforcement support than qualms about policy wisdom? After all, state officials are required under the federal Constitution to take an oath to uphold the Constitution, and not an oath to uphold good sense, or to uphold all enactments by Congress. (In this vein, recall that, as Chief Justice John Marshall observed in Marbury v. Madison, only those federal enactments made in pursuance of the Constitution are entitled to supremacy.) Can’t a state legislature decline to accept federal monies (say, Obamacare) based on its belief that the federal law offering the money includes conditions that exceed Spending Clause power? Can’t a governor veto a bill accepting federal monies on the same basis? If a president can (should?) veto a proposed law and decline to investigate and prosecute under the bill if it is enacted if she believes the federal action in question is unconstitutional (as there is general agreement she can do), and we don’t find the president’s motive in avoiding this enforcement of an ostensibly unconstitutional law problematic, why, then, would states not also be given the ability to avoid being part of what they believe is unconstitutional enforcement of federal law? The Eighth Circuit gives no reasons that basing a decision on constitutional objections is more (rather than less) problematic than on policy objections, or why federal enforcers can decline to implement laws they believe are unconstitutional but state auxiliary enforcers can’t.
Nor does McCulloch v. Maryland, the major Supreme Court case the Eighth Circuit quoted in its explanation for rejecting Missouri’s Printz argument, support the Eighth Circuit. In McCulloch, it was not Maryland’s declaration or belief that the Bank of the United States was unconstitutional that conflicted with the Supremacy Clause; it was Maryland’s effort to tax the United States. As the Court in McCulloch explained, the exercised power to tax involves the power to destroy. The power to withhold assistance—as distinguished from affirmatively impeding—does not involve the power to destroy. That is the teaching of New York v. United States and Printz.
None of this means that SAPA is necessarily valid. Other parts of SAPA go beyond the withholding of enforcement support, and do so in unconstitutional ways. In particular, SAPA clearly violates constitutional boundaries in at least three respects. First, on its face, SAPA appears to direct state courts (as distinguished from enforcement personnel) not to process claims made under enacted federal statutes (whether or not state courts think those federal statutes are constitutionally problematic), which is a no-no. (The Court in Printz explicitly distinguished impermissible commandeering of state executive actors from permissible conscription of state courts, and Testa v. Katt prohibits state courts from discriminating against federal claims.) Second, SAPA seems to prevent private parties (again, as distinguished from state enforcement personnel) from assisting the feds, which (as I explained in an earlier column) is also a no-no. Under McCulloch, just as a state can’t tax or otherwise hamper federal instrumentalities, neither can a state discriminatorily tax or hamper individuals (other than state employees) with whom the federal government might want to partner to accomplish its objectives. Third, and related, SAPA punishes people who have worked for the federal government in gun-law enforcement, by preventing those people from subsequently being employed by the state. This, too, is a no-no, also under McCulloch, for the reasons just described. All of these aspects of SAPA violate the law of the land as the Supreme Court has interpreted the Constitution, and would do so even if the enforcement-withdrawal provision were amended to remove any reference to the constitutional invalidity of the federal statutes in question.
But if the constitutional problem is what SAPA does in these three respects (and perhaps others too, given how broad and vague SAPA is), and not what SAPA asserts regarding the invalidity of federal statutes (which is the supposed constitutional flaw in the Eighth Circuit’s mind), then the question with respect to withdrawing enforcement support in the present case should be framed as whether Missouri would still want to withhold executive enforcement assistance (which it is entitled to do under Printz) even if it knew it could not withhold judicial processing (which it cannot do under Printz and Testa) or punish private persons who assist or work for the federal government in enforcing federal gun laws (which it cannot do under McCulloch). The Eighth Circuit never asked, much less answered, this—the right—question. Indeed, the Eighth Circuit got things exactly backwards—it invalidated the provision withholding federal enforcement assistance and then, on that basis, invalidated the rest of SAPA, instead of identifying the other parts of SAPA that are unconstitutional (parts the Eighth Circuit never identified or analyzed the way I do above) and then asking whether these provisions doom an otherwise permissible withdrawal of enforcement support. I don’t know whether the withdrawal of enforcement support is severable insofar as it would have been enacted even without the other, problematic parts of SAPA—and perhaps that matter ought to be certified to the Missouri Supreme Court. But it seems as least plausible that Missouri would want to exercise Printz discretion (which, again, it is free to do based on its qualms about constitutional permissibility just as much as qualms about policy unwisdom of federal enactments) even if the state could not do the other (impermissible) things SAPA tried to do. I suspect Missouri may ask the U.S. Supreme Court to look at the case to address these matters.
