Experts see disturbing trend in NYS officials refusing to enforce laws they oppose

ALBANY — A new level of political polarization is emerging in the state and nation in which elected local officials in both major parties are refusing to abide by laws they oppose, a trend political scientists fear might have grave consequences.

The ideologies behind the moves can be diametrically different: from the conservative stance against gun control laws to the liberal view of thwarting draconian immigration enforcement. But the local officials share a common claim: They have a constitutional right to refuse to follow what they deem to be unjust laws.

The trend includes:

Several Republican sheriffs since 2013 threatened to refuse to enforce the state’s latest gun control laws, In 2020 and 2021, several Republican sheriffs refused to enforce the state’s mask mandates during the COVID-19 pandemic, In Ithaca and Albany since 2017, Democratic leaders declared their municipality “sanctuary cities” for immigrants and refused to enforce federal immigration laws or assist federal immigration agents in their investigations, In New York City beginning in 2014, local measures prohibited employees from honoring requests by federal immigration agents to hold suspects under “detainers” and restricted information shared with federal Immigration and Customs Enforcement, , Just this month, some Republican counties upstate declared they wouldn’t honor federal housing vouchers issued for migrants relocating from New York City,.

“It’s an appeal to, ‘I am the ultimate authority,’ ” said Jon Michaels, a law professor at the University of California at Los Angeles Law School who has researched internal threats to the republic.

“We should definitely be concerned,” added Michaels, a Massapequa native. Society “has to have final decision-makers to avoid chaos.”

“It’s the nuclear option,” said Gerald Benjamin, retired distinguished political science professor at the State University of New York at New Paltz who has studied New York politics for decades. “You are elected, so you think you are responsible to the people, but you are also obligated to the state.

“We are taking a substantial risk,” Benjamin added.

The law enforcement ramifications of such actions can potentially be significant, but difficult to measure. That's in part because the local acts are intended to prevent, not produce, a result and largely haven't been tested by the state or federal governments. In addition, there is no consistent or legal definition of a "sanctuary city."

Some sanctuary city-type announcements are merely symbolic stands that also energize the local officials' political bases.

For example, New York City and some other Democratic-controlled cities declared they are sanctuary cities for abortions after the U.S. Supreme Court in 2022 struck down the 1973 Roe v. Wade decision that made abortion legal nationwide. Those actions don't focus on defying any federal laws. Instead, they showed support for women seeking abortions and denied cooperation with other states' investigations of women seeking abortion and practitioners.

Democratic leaders have defended calls for sanctuary cities for immigration as a reaction to what they said were unconstitutional immigration laws and practices by the federal government under former GOP President Donald Trump and the continuing action by the U.S. Supreme Court.

For example, Svante Myrick, the former Ithaca mayor who made the Tompkins County municipality a sanctuary city for immigrants, said he felt compelled to take action against what he saw as unjust actions by Trump. The Republican had ordered the federal Immigration and Customs Enforcement agency to pressure local police to help in rounding up immigrants suspected of not having proper documentation to be in the U.S.

“That makes the whole community less safe,” Myrick told Newsday in recounting the decision by him and the city council to refuse to enforce Trump's executive orders. Myrick said when immigrants — documented and undocumented — mistrust local police, they are far less likely to report crimes in which they are victims, such as crimes committed by a landlord or domestic partner.

Myrick, now president of People for the American Way, a Washington think tank that advocates for progressive measures, said he felt it was his duty as an elected official to oppose unjust edicts and law by the federal government “to stand up for the weak against the strong.”

A national leader among Republican law enforcement officers who call themselves constitutional sheriffs says they, too, must defy unjust laws.

“We all have the responsibility to disobey unjust laws,” said Richard Mack, the former sheriff in Arizona who in 2011 founded the Constitutional Sheriffs and Peace Officers Association. 

In 1997, Mack won a U.S. Supreme Court decision in which he argued the Clinton administration couldn’t force local sheriffs to conduct background checks required by the Brady Handgun Violence Prevention Act. But Mack said the route for change through the courts cost him his career and tens of thousands of dollars.

“We do not follow tyrannical, dysfunctional and unjust orders,” Mack told Newsday.

The Alabama-based Southern Poverty Law Center has for years listed the Constitutional Sheriffs and Peace Officers Association as an anti-government organization.

“They are telling sheriffs that they get to determine what is tyranny and they are patriots that should stand in the way,” said Rachel Goldwasser, senior research analyst for the SPLC’s Intelligence Project. She said of particular concern is that the groups are growing and contracted in several states to help train law enforcement.

“There is a potential for pushback, even violent pushback,” Goldwasser said.

In New York, a leader in the constitutional sheriffs effort said he’s not a right-wing agitator, just a cop doing his job as he sees it.

“I totally believe in the Constitution of the United States,” Lewis County Sheriff Mike Carpinelli told Newsday. “I believe literally in protecting the rights for people. If I have to enforce our laws, I will when it applies.”

In New York, governors have the power to remove a sheriff under the state constitution, but that’s an extreme act fraught with political fallout for a governor, especially if the sheriff is popular in his or her county and region.

Friction between local and state officials and the federal government was intentional. Framers of the Constitution wanted to prohibit tyranny by a majority, so governing was spread to several levels. But the American political system depends on bargaining and cooperation, political scientists said. Without that, friction becomes conflict and gridlock.

That safeguard against a tyrannical federal government has been reshaped by a polarization of Americans who increasingly frame their views on the sharp partisanship of the national Democratic and Republican parties, researchers said. Compounding that, they said, are police unions that are becoming increasingly Republican and Trump amplifying mistrust of courts and government.

“That’s a new development,” said Sam Rosenfeld, a political science professor at Colgate University who has written extensively on political polarization. “People express their political views as whatever the other guy is doing is unconstitutional, ‘So we have a duty not to carry out policies we oppose.’ ”

“They can do that because on the one hand, the Constitution and constitutional interpretation is ambiguous and contested inherently,” Rosenfeld said.

“Mobilization of these kinds of efforts have proliferated and taken on a real life we haven’t seen in previous decades,” he added. There is “a backlash of people who say, ‘Well, who are these people to tell me what the Constitution says?’ ”