Anti-Commandeering: The Legal Basis for Refusing to Participate

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The Supreme Court has long held that states do not have to be active participants in the enforcement or effectuation of federal acts or regulatory programs.

The basis for what is now known as the legal doctrine of “anti-commandeering” was the advice of James Madison, writing in Federalist #46. There, he advised four primary tactics for individuals and states to effectively push back against federal overreach, including a “refusal to cooperate with officers of the Union.”

The following are the four landmark cases where the Court has upheld this doctrine.

In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle ...