Institutional Resistance

The Constitution provides multiple layers of checks on executive power. Understanding how institutions can lawfully resist overreach is essential to preserving democracy.

Constitutional Design

The framers designed a system where power is divided across institutions. When one branch overreaches, others have constitutional tools to push back. This is not obstruction — it's the system working as intended.

James Madison, in the Federalist Papers, outlined what proponents call a blueprint for resisting federal overreach, suggesting that a "refusal to cooperate with officers of the union" would impede overreach. Madison noted that "the means of opposition to it are powerful and at hand."

The Tenth Amendment & Anti-Commandeering Doctrine

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

— Tenth Amendment, ratified December 15, 1791

The anti-commandeering doctrine is a powerful constitutional tool that prevents the federal government from requiring state and local officials to enforce federal law. This doctrine has been affirmed through multiple Supreme Court decisions.

Key Supreme Court Cases

New York v. United States (1992)

The Court held that the federal government cannot compel states to regulate according to a federal plan. The decision struck down a federal provision regarding nuclear waste, holding that it impermissibly "commandeered" states into federal service.

Printz v. United States (1997)

A 5-4 decision written by Justice Scalia struck down part of the Brady Handgun Violence Prevention Act because requiring local sheriffs to perform gun background checks conflicted with anti-commandeering principles.

Murphy v. NCAA (2018)

The Court ruled that the anti-commandeering doctrine applies equally to congressional attempts to prevent states from taking certain actions as it does to requiring states to enforce federal law.

What States Can Lawfully Do

  • • Refuse to use state resources to enforce federal programs
  • • Decline to share information with federal agencies (within limits)
  • • Establish policies that make federal enforcement more difficult
  • • Create "firewall" legislation protecting residents from federal overreach

Important Limitations:

  • • States cannot actively obstruct federal law enforcement
  • • The Supremacy Clause (Article VI) means valid federal law preempts conflicting state law
  • • Federal agencies can still enforce federal law directly, even without state cooperation
  • • States cannot "nullify" federal law — this was rejected in Cooper v. Aaron (1958)

Sanctuary Policies & Legal Basis

Sanctuary policies are grounded in the anti-commandeering doctrine. The Supreme Court has ruled that the federal government cannot compel local jurisdictions to enforce federal immigration laws. Cities can choose how much cooperation they provide, as long as they don't violate other laws.

What Sanctuary Policies Do

  • • Limit local law enforcement cooperation with federal immigration authorities
  • • Decline to honor civil immigration detainers without judicial warrants
  • • Establish "status-neutral" service policies
  • • Protect residents from deportation based solely on immigration status

Constitutional Foundations

  • Anti-Commandeering: The Tenth Amendment prohibits the federal government from ordering state officials to detain people for immigration purposes
  • Fourth Amendment: Courts have held that continuing to jail people without a warrant or probable cause after the reason for state custody has lapsed is unconstitutional

Maintaining Defensible Policies

To maintain legally defensible sanctuary policies, jurisdictions should focus on non-cooperation rather than obstruction, require judicial warrants for immigration holds, establish clear policies limiting information sharing to what's legally required, and coordinate with civil rights attorneys.

State Attorneys General

State attorneys general are the chief legal officers of their states, with broad authority to challenge federal overreach and protect state residents.

Powers and Authority

  • • File lawsuits challenging federal actions
  • • Defend state laws against federal challenges
  • • Enforce state laws protecting residents
  • • Issue legal opinions guiding state policy
  • • Investigate and prosecute violations

Historical Pattern

Attorneys general from the party out of federal power have challenged federal administrations since at least the Reagan administration in the 1980s. This has been a bipartisan pattern with documented success rates.

How to Support Your State AG:

  • • Contact your AG's office to report potential violations
  • • Provide documentation of federal overreach affecting your community
  • • Support AG candidates who prioritize constitutional oversight
  • • Participate in public comment periods on AG priorities

Congressional Oversight Powers

Though not explicitly stated in the Constitution, courts have long held that Congress has broad investigative powers as a corollary to its Article I legislative power.

Congressional Tools

Subpoena Power

Compel production of records and testimony

Deposition Authority

Conduct transcribed interviews

Public Hearings

Bring issues into public view

Contempt Authority

Enforce compliance with subpoenas

Types of Contempt

Civil Contempt

House or Senate brings a party to federal court to enforce a subpoena.

Criminal Contempt

Congress finds a party in criminal contempt and refers to DOJ for prosecution. This is more effective when the same party controls Congress and the executive branch.

Inherent Contempt

A rarely used power where Congress directly detains and tries individuals. This historic power has been invoked sparingly in modern times.

Supporting Congressional Oversight:

  • • Contact representatives demanding vigorous oversight
  • • Testify before congressional committees when relevant
  • • Provide documentation to oversight committees
  • • Support reform legislation strengthening oversight powers

Military Oath & Duty to Refuse Unlawful Orders

The Oath Is to the Constitution

All members of the U.S. military swear an oath to the Constitution — not to any individual, party, or political movement. This is a deliberate constitutional design.

Two Different Oaths

Enlisted Oath

Includes obligation to obey lawful orders from the President and officers.

Officer Oath

Taken "without mental reservation" — officers are obligated to ensure orders that reach them are lawful. The constitutional failsafe is specifically designed around the officer corps.

The UCMJ Framework

The Uniform Code of Military Justice codifies the obligation to refuse unlawful orders:

  • • Service members must obey lawful orders
  • • Service members must disobey unlawful orders
  • • Following orders is not a defense if those orders are unlawful
  • • An order is unlawful if it violates the Constitution, U.S. laws, military regulations, or directs commission of a crime

The "Manifestly Unlawful" Standard

Military law uses a deliberately narrow standard for refusing orders:

  • • Orders must be "manifestly" or "patently" illegal
  • • Examples include orders to commit atrocities, murder, or torture
  • • The standard recognizes military need for discipline
  • • Only orders clearly directing crimes or obvious constitutional violations meet the threshold

Key Precedent: Lieutenant Calley

Lieutenant William Calley was court-martialed for following orders to kill unarmed women and children during the Vietnam War. This established that "I was just following orders" (the "Nuremberg defense") is not valid under American military law.

Law Enforcement Legal Obligations

Like military personnel, civilian law enforcement officers have legal obligations regarding unlawful orders. Officers can face civil and criminal liability for enforcing unlawful orders, and "just following orders" is not a defense for constitutional violations.

Constitutional Limitations on Police Orders

Courts have established that certain police orders are unlawful:

  • • Orders to arrest without probable cause
  • • Orders violating First Amendment rights (including ordering people to stop recording police)
  • • Orders requiring unreasonable searches without warrants
  • • Orders to use excessive force

Fourth Amendment Protections

  • • Law enforcement cannot detain individuals beyond the scope of their lawful custody without probable cause
  • • Officers cannot hold people on immigration detainers without judicial warrants
  • • Warrantless searches require exigent circumstances

Officer Liability

Officers who follow unlawful orders may face:

  • • Civil liability under Section 1983 (civil rights violations)
  • • Criminal prosecution for constitutional violations
  • • Department discipline
  • • Loss of qualified immunity protection

Historical Examples of Institutional Resistance

The Saturday Night Massacre (1973)

The paradigmatic example of institutional resistance to executive overreach:

  1. President Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox
  2. Richardson refused and resigned
  3. Nixon ordered Deputy AG William Ruckelshaus to fire Cox
  4. Ruckelshaus refused and resigned
  5. Solicitor General Robert Bork carried out the firing

The Aftermath: Nearly half a million telegrams of protest arrived within a week. Congress initiated impeachment proceedings. This led to United States v. Nixon (1974), establishing that no person, including the President, is above the law.

The 2021 DOJ Confrontation

In January 2021, the entire DOJ leadership, led by acting Attorney General Jeff Rosen, told Trump they would all resign if he installed Jeff Clark as Attorney General to pursue his plans. Trump relented, demonstrating institutional strength.

Daniel Ellsberg & the Pentagon Papers (1971)

Daniel Ellsberg, a military analyst, leaked the Pentagon Papers — a top-secret study of U.S. involvement in Vietnam — to The New York Times and other newspapers.

When the Times was enjoined from publishing, Ellsberg gave copies to the Washington Post and eventually 19 papers total. Multiple major newspapers publishing in defiance of four federal injunctions represented "a unique wave of civil disobedience by major American institutions." The Supreme Court ruled 6-3 against prior restraint, a landmark victory for press freedom.

The Lesson:

"It is only when public servants of great integrity... stand up in times of crises and do the right thing, even though this may jeopardize their own personal career ambitions and interests, that our system is strong enough to withstand frontal assaults on the Constitution's delicate balance of power."

Inspectors General & Oversight Infrastructure

Inspectors General (IGs) are independent watchdogs established in federal agencies to prevent and detect fraud, waste, and abuse. The Inspector General Act of 1978 recognized independence as key to IG effectiveness.

IG Roles and Powers

  • • Conduct audits and investigations
  • • Report findings to agency heads and Congress
  • • Operate independently from agency leadership
  • • While under general supervision, neither the agency head nor deputy can prevent an IG from conducting audits or investigations

IG Effectiveness

In fiscal year 2024, federal IGs issued 2,042 audit, inspection, and evaluation reports, conducted investigations resulting in 3,675 criminal prosecutions, and generated 1,015 civil actions.

Supporting IG Independence:

  • • Contact members of Congress demanding IG independence
  • • Support legislation strengthening IG protections
  • • Monitor Oversight.gov for IG reports
  • • Report waste, fraud, and abuse through IG hotlines

How Citizens Can Support Institutional Resistance

Support Legal Organizations

  • • Donate to ACLU, Brennan Center, Democracy Forward, and local legal aid
  • • Volunteer legal skills if you're an attorney
  • • Serve as a plaintiff if you're directly affected by overreach

Support State Resistance

  • • Contact state legislators about anti-commandeering legislation
  • • Support state AG candidates who prioritize constitutional oversight
  • • Participate in state rulemaking processes

Support Congressional Oversight

  • • Contact representatives demanding vigorous oversight
  • • Provide documentation to oversight committees
  • • Testify when you have relevant information

Document and Report

  • • Keep records of government overreach affecting your community
  • • Report to journalists, legal organizations, and oversight bodies
  • • Preserve digital evidence properly

Key Takeaways

Legal Mechanisms Available

  • • Anti-Commandeering Doctrine: States cannot be forced to enforce federal law
  • • Court Injunctions: Federal courts can block unconstitutional executive actions
  • • State AG Litigation: States can sue to challenge federal overreach
  • • Congressional Subpoenas: Congress can compel testimony and documents
  • • Whistleblower Protections: Federal employees can report violations with legal protection

Institutions with Checking Power

  • • Federal courts (judicial review of executive actions)
  • • State governments (anti-commandeering, sanctuary policies)
  • • State attorneys general (litigation challenging federal actions)
  • • Congress (oversight, investigations, contempt power)
  • • Inspectors general (internal oversight when independent)
  • • Military officer corps (duty to ensure lawfulness of orders)
  • • Press (public accountability through journalism)

Resources

Legal Organizations

Government Oversight

Legal Information