Commandeering, in constitutional law, is the principle that the federal government may not order state and local governments to enforce federal law. On The Bob Zadek Show the doctrine is treated as a structural feature of American federalism, invoked in episodes on immigration enforcement, Prohibition, vaccine mandates, federal spending conditions, and civil asset forfeiture.
The principle stated
Bob Zadek introduces the doctrine in a 2016 episode on California’s Proposition 187, calling anti-commandeering a little-known but important part of constitutional law: the federal government is not permitted to command or compel local law enforcement to enforce federal law. He adds that the federal government might be able to do so coercively by denying other federal benefits to states and localities, but that even there the Supreme Court is sensitive to the issue. He frames sanctuary cities as raising the question of whether local law enforcement can be made to assist the federal government, and calls the issue constitutionally tricky. Alex Nowrasteh: How Prop. 187 Turned California Blue (2016)
Guest Alex Nowrasteh agrees that it is constitutionally tricky. He says the Obama administration attempted it from 2009 to 2011 and triggered a backlash that caused it to back down on immigration enforcement. He points to the Obamacare decision, NFIB v. Sebelius, as limiting the ability of the federal government to use funds to coerce states into adopting certain activities. In his account, the federal government is now more limited than during the first Obama term in how it can use funds to coerce states, and any denial or attachment of funds to cities such as sanctuary cities must be clearly and explicitly spelled out in law. Because that is not currently in the law, Congress would have to pass a law. Alex Nowrasteh: How Prop. 187 Turned California Blue (2016)
Zadek closes the exchange by saying the sanctuary city movement—San Francisco, New York, other major urban centers—is on the right side of the Constitution in refusing to assist the feds in enforcing federal law, which he calls a little-known aspect of the 10th Amendment. Alex Nowrasteh: How Prop. 187 Turned California Blue (2016)
Prohibition and the absence of a federal police force
In a 2018 episode, Zadek develops the doctrine at greater length. He says commandeering teaches that the federal government cannot order state and local governments to enforce federal law, and grounds the principle in federalism, with separate but equal branches of government and the states having their province and the federal government its province. ICE in the Age of Trump (2018)
He traces the issue to the Prohibition era, when the federal government enacted the Volstead Act, which made it illegal to manufacture and sell alcohol. Because there was no federal police force, the federal government needed the states to help enforce a federal crime nationwide, and the states were not all that willing; enforcement was spotty. Zadek says the Feds could not put together enough of a federal police force, because it did not exist, and enforcement became absurd. ICE in the Age of Trump (2018)
He applies the history to immigration: federal immigration policy requires boots on the ground, undocumented immigrants are scattered in 50 states, and without a federal police force the Feds are somewhat powerless unless they can commandeer the states. California, in his account, says it will not help and does not support the policy. The question of the extent to which states can be compelled to enforce a federal law may be tested in the Supreme Court. ICE in the Age of Trump (2018)
Commandeering and vaccine mandates
A 2021 episode on vaccine mandates extends the term to a different setting. The guest, Bob Levy, says OSHA is requiring that employers do what the government does not have the power to do directly, and calls that the commandeering Bob mentioned a second earlier. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Zadek frames the OSHA question as involving serious constitutional questions about whether OSHA has the power, noting that OSHA regulations have been struck down more frequently than other agencies’ regulations, including an attempt to regulate ergonomic chairs in offices. He puts aside the serious constitutional questions involving commandeering and administrative agency overreach to ask about policy. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Levy sets out strict scrutiny as the framework for regulations of fundamental rights: government must show a compelling need, that the regulation will not cause harm and will be effective, and that there is no better way to accomplish the objective without violating personal autonomy. He notes a controversy about regulating activities that have not created injury, distinguishing punishment of past harm from compulsion aimed at future harm, an area of law called endangerment. He offers speed limits and nuclear power plant safety requirements as examples, and says the question of how much risk must be tolerated is difficult to resolve on rights and sometimes requires cost-benefit tradeoffs. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Zadek proposes that health insurers refuse to cover COVID-related medical care for the unvaccinated, which he says would put the decision and its consequences on the decider. Levy responds that insurers have in some areas been prohibited by law from adjusting premiums—he cites the prohibition on gender distinctions—but that if government allowed premiums to reflect risk, he likes the idea, subject to administrative difficulties such as people who medically cannot be vaccinated and claims of religious or medical exemption. A Libertarian Legal Perspective on Vaccine Mandates (2021)
Conditions on federal funds
In a 2021 episode on the New Civil Liberties Movement, Zadek raises the Build Back Better tax mandate. He describes the federal government offering money to the states on the condition that states not lower their taxes, and asks guest Philip Hamburger to explain. The New Civil Liberties Movement (2021)
Hamburger says the condition is one of the cases the New Civil Liberties Alliance is litigating. He calls it extraordinary: the federal government, attempting to impose its policies and buy compliance from the states, worried that some states would use the money to reduce their own taxation, imposed the condition that states receiving federal money may not lower their taxes. He calls it clearly unconstitutional—spending to the states is unconstitutional, and the condition attempts to regulate the states, which should be done through an act of Congress. Of particular salience, he says, it is commandeering the states and directing how they engage in taxation in exchange for federal money. The New Civil Liberties Movement (2021)
Hamburger explains that the Supreme Court has complicated these matters by saying the federal government cannot commandeer the states coercively, which the federal government has read as a license to commandeer the states through conditions, on the theory that conditions are not coercive but a consensual deal. He argues this rearranges the structural relationship between the federal government and the states, which are independent sovereigns, and that federalism is not just a structural matter but the people’s freedom of self-government. He predicts the courts will hold the condition unconstitutional. The New Civil Liberties Movement (2021)
Equitable sharing and civil asset forfeiture
A 2022 episode on the causes of BLM riots applies the doctrine to drug enforcement. Zadek says the federal government, lacking a police force in theory, sought help enforcing federal drug laws and commandeered local police departments—even though commandeering is unconstitutional—by inducing them to confiscate property through civil asset forfeiture. Under equitable sharing, local law enforcement kept half or a third of what they seized in enforcement of federal drug laws. In Zadek’s account the federal government effectively hired local law enforcement to enforce federal drug laws and gave them an incentive to abuse the practice. He says the practice has been scaled back and received unpleasant attention but may still be going on. The Hidden Cause of BLM Riots (2022)
Guest Bill Maurer says there have been efforts at the state and federal levels to rein in civil asset forfeiture, but the federal efforts have not been successful. He calls it an enormous cash cow and notes that Michigan made it easier for police forces to seize cash at airports. In his account, cash is treated by many in government as evidence of drug dealing, and governments like revenue and will seek it out even at the cost of due process or constitutional rights. The Hidden Cause of BLM Riots (2022)
Across episodes
The doctrine recurs across the excerpts, but the treatment does not develop along a single line. The 2016 and 2018 episodes state the principle and apply it to sanctuary cities and immigration enforcement, with Nowrasteh adding NFIB v. Sebelius as a limit on coercive funding conditions. The 2021 vaccine episode uses commandeering as a label for OSHA’s employer mandate, while the 2021 New Civil Liberties episode shifts the focus to conditions on federal funds and Hamburger’s argument that the Supreme Court’s conditional-spending doctrine has become a license to commandeer. The 2022 episode applies the term to equitable sharing and civil asset forfeiture. The later episodes do not revise the earlier statement of the principle; they extend it to new federal instruments.
What the sources do not cover
The excerpts do not identify the cases that established the anti-commandeering doctrine, nor do they state which amendment the Supreme Court relied on in those cases. They do not give the outcome of the New Civil Liberties Alliance litigation over the Build Back Better tax condition, or of any challenge to the OSHA mandate. The excerpts also do not state the current legal status of equitable sharing or civil asset forfeiture, or the names and citations of the statutes involved beyond the Volstead Act.