Constitutional Sheriffs Are Violating the Constitution They Claim to Uphold

What Is a “Constitutional” Sheriff?

“Constitutional Sheriffs” are a fringe movement that believes that county sheriffs are the sole policing power and thus supreme power within their respective counties. They believe that sheriffs are the legal authority of last resort on issues including property rights, gun law, Covid-19 measures, and immigration, among other political and legal matters.

They draw their origins from violent anti-Semantic and anti-government movements in the 1970s and 1980s opposed to taxes and foreclosures. Constitutional sheriffs resurfaced as a political group around 2014 in the wake of the Tea Party and gained more support as the alt-right rose to prominence with the election of Donald Trump. It is estimated that movement has about 10,000 supporters, including 3,000 sheriffs.

In 2014 and 2016, Cliven Bundy and his family repeatedly occupied federal property in Nevada with firearms. They demanded that the local sheriff confront federal agents who were in the standoff with them under the theory that “the county sheriff is the only person that We the People have allowed to have policing power.”

In 2017, then-Sheriff Joe Arpaio of Maricopa County, Arizona refused to comply with a judge’s order that he stop detaining citizens without probable cause based on the mere suspicion that they were in the country illegally. Then-President Donald Trump pardoned Arpaio a month after he was held in contempt. Arpaio gained support and popularity within the faction after his pardon.

Many Constitutional sheriffs have expressed support for the Capitol Insurrection in 2021. Several of its members have been the subjects of federal investigation into the attack on Congress.

Do Sheriffs Have Any Constitutional Authority To Overrule the Federal Government?

The text of the Constitution does not mention sheriffs anywhere within it. However, the Constitution requires that “the Laws of the United States…shall be the supreme Law of the Land.” If there is any conflict between federal law and state or local law, then federal law will override the state or local ordinances, not the other way around. The 14^th Amendment was also passed after the American Civil War to resolve the issue of whether state authority or federal authority is supreme. Any arguments that these sheriffs have regarding state or local power overriding federal authority died with the Confederacy after the Civil War ended.

The Constitution also vests the Supreme Court and lower courts with the judicial power of the United States. Separation of powers is essential to ensure that no one office has too much power and so that citizens know which body to hold accountable if their rights are violated. These sheriffs are making an illegal power grab from the judiciary and also preventing people from properly bringing their claims to court while the facts and the law can be properly adjudicated.

The only part of the Constitution that could support the concept of “constitutional sheriffs” is the 10^th Amendment, which provides that powers not given to the federal government are reserved for the states and the people. Although these sheriffs could argue that “the people” refers to the people’s elected representatives that does not mean these sheriffs are the only representatives of the people. Governors, mayors, and lawmakers have an equal, if not greater claim, to constitutional authority under the 10^th Amendment as any county sheriff.

Why Does It Matter If These Sheriffs Are Usurping Power?

“Constitutional” sheriffs believe they are supreme authorities within their own counties. They infringe upon legal issues that impact average Americans, including laws regarding Covid-19, immigration, and criminal due process. Sheriffs like Joe Arpaio was detaining people without regard for due process and violated a court order that he stop doing so. Many of these sheriffs refuse to comply with laws and court orders to confiscate guns. While gun proponents might agree with this general sentiment, law enforcement’s failure to comply with gun laws will endanger those who file restraining orders and potentially increase the risk of mass shootings.

Renegade law enforcement is dangerous to Americans because they willfully violate the law and are unaccountable to other legal authorities who attempt to check their power. Unchecked law enforcement can especially create volatile conditions after the George Floyd protests and riots of 2020.

Thus Always to Tyrants

To be certain, all executive officers interpret the law to a certain extent. Police officers responsible for traffic stops must determine whether a particular vehicle has violated a traffic law. Prosecutors decide whether someone has violated a law and what criminal charges to file. Executive power must logically and practically include a certain degree of legal interpretation. However, executive power ends when a court makes a ruling. Executive officers, like these sheriffs, are not supposed to outright defy a court order. Even if a sheriff believes a law is unconstitutional, that decision is for a court to make.

The federal government is elected by more people than any single county sheriff. The President is elected by the entire country and the Supreme Court as a body is appointed by multiple presidents and confirmed by multiple senates. Each individual sheriff is only a single person in their county and apparently do not believe they have to answer to anyone. What happens if a sheriff is violating a person’s rights in the county? If the sheriff refuses to comply with a federal authority, such persons would have no recourse. Joe Arpaio was running his own concentration camp without regard for medical care or due process of those who were detained. While these sheriffs might be elected by the county, many of them question the legitimacy of the 2020 elections and supported the subsequent capitol insurrection. It seems unlikely these same sheriffs would accept their own defeats at the ballot box.

These sheriffs are concerned about federal tyranny, but overlook their own despotism. The President’s authority is limited by the Electoral College, Congress, and judges. These sheriffs have devised a theory whereby they answer to no other authority and many of them believe in a conspiracy that could be used to ignore their own election losses. Despite claiming to be patriots against federal overreach, they are in fact would be dictators who seemly accept no limits on their own power. They must be brought to court, state or federal, so that they can be held accountable for their actions and policies, just like every other elected officer in this country.

Should I Contact a Criminal Defense Lawyer?

It is essential to have the representation of a criminal lawyer for any dealings with the criminal justice system. Your attorney can review your case, present any available defenses, and represent you in court.