Bradley Rebeiro (Brigham Young University – J. Reuben Clark Law School) has posted Anti-Slavery and Anti-Commandeering (Kentucky Law Journal (forthcoming)) on SSRN. Here is the abstract:
This Article recovers the anti-slavery origins of the anti-commandeering doctrine and reassesses its constitutional pedigree. Drawing on a comprehensive review of fugitive-slave episodes between Prigg v. Pennsylvania (1842) and the Civil War, it shows that northern legislatures, governors, and courts systematically withheld their own personnel, coffers, and jails from enforcing the Fugitive Slave Act of 1850. Far from a late-twentieth-century invention, anti commandeering thus emerged as a lived practice of constitutional resistance that protected black freedom and sharpened the line between state autonomy and federal supremacy.
The Article makes three contributions. First, it offers the first systematic account of how personal-liberty statutes, gubernatorial refusals, and habeas writs collectively constrained the 1850 Act’s reach, thereby highlighting the outer contours of anticommandeering. Second, it refines the doctrinal boundary between noncooperation (constitutionally permissible) and obstruction (forbidden), clarifying the interaction among anti-commandeering, the Supremacy Clause, and pre-emption. Of particular interest in the fine distinction between noncooperation and obstruction is the role of state courts. Contrary to conventional wisdom, state court noncooperation was well within the proper bounds of anti-commandeering in practice, even if state courts could not declare federal laws unconstitutional (obstruction). Third, it illuminates the doctrine’s contemporary payoffs—particularly sanctuary-city policies—while candidly confronting rule-of-law costs. By situating modern debates in this emancipatory history, the Article provides courts and policymakers with a principled metric for reconciling state dignity and national supremacy.
Highly recommended.