“Posse Comitatus? The Chicago Tribune’s Sad Defense of ‘Just Following Orders’ Mentality – Wirepoints

By: Mark Glennon*

It’s disappointing and perplexing how reporters at a major American newspaper could embrace a principle so wrong – and so long agreed to be wrong.

Can law enforcement officers decline to enforce laws they reasonably believe to be unconstitutional while they wait for answers from the courts?

Yes, of course they can — and should under the right circumstances when there’s a reasonable expectation that a law will be struck down by the courts. That’s what we wrote here in January – an answer we think should be obvious. Enforcement officials at all levels often do just that.

But Chicago Tribune reporters Rick Pearson and Jeremy Gorner wrote this month – in a news piece, no less, not an opinion column – that that position is wrong and extremist. It “represents an increasingly rightward tilt among law enforcement nationally toward what is known as the “constitutional sheriff” movement, they claim.

The “constitutional sheriff” movement that Pearson and Gorner were trying to invoke is a fringe, dangerous position held by a few fanatics, mostly in western states, that sheriffs somehow have powers that override all law, even the U.S. Constitution.

In truth, that movement has nothing to do with the topic of the article. It was used by the Tribune authors to try to paint as extremist a viewpoint that has long been settled.

One of those reporters went still further, specifically naming us. Our Wirepoints column makes us at Wirepoints “posse comitatus,” wrote Pearson, a veteran Tribune reporter, on Twitter. Posse comitatus is shorthand for the notion that law enforcement officials can round up a mob of citizens to do rough justice as they see fit.

In other words, the Tribune writers think police should enforce whatever is legislated regardless of whether that would violate the Constitution, and anybody who says otherwise is a rightwing nutjob defying the rule of law.

Pearson and Gorner made this bizarre claim in support of the Protect Illinois Communities Act (PICA), which restricts assault weapons and establishes a registry for certain firearms. A reasonable defense of PICA could have been written, but Pearson and Gorner didn’t attempt that. Instead, they made the sweeping argument that police are obliged to enforce whatever is legislated, and you’re an extremist crank if you think the Constitution imposes limits that must be respected by public officials.

That would of course include not only Wirepoints but the roughly 91 of Illinois’ 102 county sheriffs who aren’t enforcing parts of PICA pending an answer on its constitutionality, and everybody who agrees with those sheriffs.

Set aside for now your opinions about PICA and consider the vast implications of what Pearson and Gorner assert.

Understand that this is not about prosecutorial discretion. Prosecutorial discretion is broad – too broad, some think – allowing prosecutors to pick and choose who to prosecute for just about any reason. That discretion can be abused, as it has been by Cook County State’s Attorney Kim Foxx, who fails to prosecute violent criminals for her own political reasons and personal philosophies. It’s not the job of a prosecutor to substitute his or her judgment for the policy judgment of a legislature or city council.

Instead, something much bigger is at issue when a law is thought to be unconstitutional: The Constitution is supreme. What a governor and the legislature say together, through laws they enact, is not the end of the story. It has been that way since 1803, when the Supreme Court ruled in Marbury v. Madison that a law made in violation of the Constitution is void.

Law enforcers of any kind are right to decline enforcement of any law they reasonably believe, in good faith, to be unconstitutional, provided they go to court quickly and abide by the results, as we wrote earlier.

The sheriffs and multiple other plaintiffs did just that on PICA. On state constitutional grounds, they’ve won so far. A lower court found earlier this month that PICA violated the equal protection clause of the Illinois Constitution. The Illinois Supreme Court has fast-tracked the state’s appeal of that with oral arguments scheduled for May.

PICA also faces a separate challenge in two federal courts alleging violation of the Second Amendment of the U.S Constitution (described in detail here). Decisions there undoubtedly will be appealed.

If the sheriffs and other plaintiffs lose, they should back off and accept the constitutionality of the law. Exactly when that point will occur in the appeals process is open to debate. For now, however, Illinois sheriffs appear to be on firm ground, harboring reasonable objections about the constitutionality of the law.

Unquestionably, sheriffs and other officials should use the claim of unconstitutionality sparingly. Personal opinions or imaginary concerns about unconstitutionality must not guide their enforcement. Constitutional objections must be objectively reasonable, we wrote. That’s especially true for sheriffs because, as we explained in our initial article, Illinois and most states impose few mandates or limitations on what they do. Restraint on their discretion is particularly appropriate.

As to the broader issue, it’s especially strange to see left-leaning news media like the Tribune signing onto Pearson and Gorner’s discredited theory. Consider some of the countless examples where the left vehemently asserted that laws thought to be unconstitutional need not be enforced.

• In the years running up to the Supreme Court’s recognition of gay marriage in the 2015 Obergefell decision, gay marriage bans were common across the states, and the federal Defense of Marriage act was also on the books denying recognition of gay marriage. But countless state’s attorneys, local prosecutors, and even clerks issuing marriage certificates had already begun to ignore those bans. They did so based on their speculation that the Supreme Court would soon support them, as it did. President Obama’s attorney general, Eric Holder, directed the Justice Department to cease defending the Defense of Marriage Act in 2011, which effectively gave the green light to ignore the law well before Obergefell. You certainly didn’t hear anybody on the left claiming that posse comitatus was on the loose.
• President Trump’s border enforcement measures were harshly criticized by the left as being cruel and unconstitutional. His ICE directed defended the policies by saying his people were “just following orders.” Critics went haywire, comparing that defense to what was used by Nazis during World War II. Once again, nobody on the left said border agents would be acting like “constitutional sheriffs” if they conformed to what the left thought the constitution required.
• When CIA Director Gina Haspel was nominated for that position by Trump in 2018, critics bristled about her oversight of torture facilities that allegedly were illegal under international law. Critics were particularly angry about her supporters’ defense that she was “just following orders.” Once again, the comparison was made to World War II Nazis, as here in The Intercept. And again, nobody claimed it would be lawless extremism for her to have ignored her orders and complied with international law. To the contrary, American soldiers are told in basic training that they have an obligation not to obey an unlawful order. One of the great advances of the Nuremberg Tribunal was its rejection of the Nazi’s “good soldier” defense—as urged by the American prosecutor and Supreme Court justice, Robert Jackson.

That Intercept column has a particularly interesting line in its criticism of the view that invalid laws require obedience. “Remarkably,” the column says, “this perspective has even seeped into the viewpoint of regular journalists.”

Indeed it has – as Pearson and Gorner sadly illustrate.

Presidents even sometimes direct the Department of Justice not to enforce parts of bills they’ve signed themselves when they believe some provisions are unconstitutional. They do that initially in “signing statements” that lay out the parts they consider constitutionally objectionable.

Presidents of both parties have long issued signing statements. Joe Biden, when a candidate for president in 2018, said they are appropriate in the right circumstances. Even NPR acknowledged that Trump had the right to use a signing statement, writing that “legal and political experts say it isn’t uncommon or out of line with what presidents in recent history have done when it comes to commenting on legislation they are signing into law.”

If Pearson and Gorner were right, those presidents would all be posse comitatus because they willfully ignore laws passed by Congress.

Pearson and Gorner also made a big deal out a supposed contradiction between sheriff’s decision not to enforce parts of PICA and a resolution they passed in 2013. There’s no contradiction if you read it closely. On the contrary, it’s entirely consistent.

Finally, Pearson and Gorner asserted that “Christian nationalism” was behind the thinking that unconstitutional laws must be enforced. That’s too jaw-dropping a claim to warrant an answer.

They end their Tribune column by quoting Rep. Kelly Cassidy (D-Chicago), a PICA sponsor, saying the sheriffs have been doing “a lot of mental gymnastics to justify violating their oath of office.”

That’s dead wrong.

The oath says nothing about enforcing Illinois statutes — but it does say “I will support the Constitution of the United States, and the Constitution of the State of Illinois.” Same for the oath taken by Cassidy and all Illinois legislators.

Those oaths rightly recognized the supremacy of the Constitution. When there’s solid reason for believing a law to be unconstitutional, suspending enforcement pending an answer from the courts has long been recognized as appropriate.

It’s a sad day for journalism and the country when a paper like the Tribune dismisses constitutionalism as extremism.

*Mark Glennon is founder of Wirepoints.