Could an Idaho ballot initiative require federal officers to obtain the county sheriff's written permission before making any arrest, search, or seizure in Idaho?
Plain-English summary
A petitioner filed a 2010 Idaho ballot initiative declaring that no federal officer could make an arrest, search, or seizure within Idaho without the written permission of the local county sheriff. Limited exceptions would have required the Idaho Attorney General's approval. The sheriff would have been free to deny permission "for any reason that the sheriff or his designee considers sufficient." Federal officers who acted without permission would have been subject to arrest and prosecution for kidnapping, trespassing, or theft, and any federal statute purporting to grant federal officers "the authority of a county sheriff" would have been declared invalid.
The Attorney General's Certificate of Review concluded the initiative was clearly unconstitutional. The Supremacy Clause of the U.S. Constitution, Article VI, makes federal law "the supreme law of the land" and binds state judges to apply it. Under the preemption doctrine, "any state law that contradicts or interferes with any Act of Congress" is invalid (Hayfield Northern Railroad Co.). Federal law is "as much the law of the several States as are the laws passed by their legislatures" (Haywood v. Drown). The State of Idaho would violate the federal Constitution if it interfered with federal acts, including by preventing federal officers from enforcing federal law and criminally prosecuting them for performing their lawful duties.
The AG concluded no alterations or revisions could render the initiative constitutional. Unlike most Certificates of Review, which suggest drafting fixes, this one offered none, because the initiative's core mechanism (state veto over federal law enforcement) cannot be reconciled with the Supremacy Clause regardless of how it is worded.
Currency note
This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What did this initiative actually try to do?
It would have required federal officers (FBI agents, ATF agents, DEA agents, U.S. Marshals, IRS criminal investigators, and others) to get written permission from the relevant Idaho county sheriff before making any arrest, search, or seizure within the state. The sheriff could refuse permission "for any reason." Federal officers who acted without that permission would face Idaho criminal charges for kidnapping, trespassing, or theft. Federal statutes purporting to grant federal officers "the authority of a county sheriff" would be declared invalid in Idaho.
Why is that unconstitutional under the Supremacy Clause?
Article VI of the U.S. Constitution makes federal law supreme. The Supreme Court has long held that state laws conflicting with federal law are "without effect" (Altria Group, Inc. v. Good (2008)). A state cannot block federal officers from enforcing valid federal statutes, and it cannot use state criminal law to punish federal officers for performing their official duties. The federal anti-commandeering doctrine cuts the other way (Congress cannot make state officers enforce federal law), but it does not let states veto federal enforcement of federal law.
Could parts of the initiative be salvaged?
The AG said no. Unlike other Certificates that suggest drafting fixes, this Certificate states "[t]here are no alterations or revisions to this initiative that would render it constitutional." That is because the initiative's purpose, which is conditioning federal law enforcement on state permission, is itself the constitutional defect. Reword it however you like, and it still tries to do something the Supremacy Clause forbids.
Is this part of a broader movement?
It came out of the late 2000s "Tenth Amendment" or "nullification" wave that produced similar initiatives in many states. The same petitioner, Alanna Grimm, also submitted the Idaho Firearms Freedom Act initiative, the Enforcement of Federal Laws nullification initiative, and the Idaho Right to Protection Act initiative on similar dates. The AG's office issued parallel Certificates of Review on each, all reaching the same Supremacy Clause conclusion.
Did the initiative make the ballot?
The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures, redrafted the proposal, or abandoned it would need to be confirmed against Idaho election records.
Background and statutory framework
The Certificate of Review process under Idaho Code § 34-1809 requires every initiative petition to receive a written legal review from the Attorney General's office before signature gathering. The review covers form, style, and substantive legal problems including any constitutional defects. The AG's recommendations are explicitly advisory; the petitioner can accept or reject them. The AG does not weigh in on policy.
The substantive analysis is preemption doctrine. The Supremacy Clause (U.S. Const. art. VI) makes federal law "the supreme law of the land." The Supreme Court's preemption cases hold that state law that "contradicts or interferes with any Act of Congress" is invalid (Hayfield Northern Railroad Co. v. Chicago and Northwestern Transp. Co.). The Court has reiterated that state laws are powerless to alter federal enforcement of federal law (Altria Group, Inc. v. Good; Haywood v. Drown).
The federal anti-commandeering principle (Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992)) limits Congress's ability to compel state officers to enforce federal law. But that limitation goes only one way: it does not authorize states to commandeer or override federal officers performing federal duties. The initiative's premise, that the sheriff could veto federal arrests, ran the limitation in the wrong direction.
Citations
U.S. Constitution: art. VI.
Idaho Code: § 34-1809.
Cases: Altria Group, Inc. v. Good, 555 U.S. 70 (2008); Haywood v. Drown, 556 U.S. 729 (2009); Hayfield Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622 (1984).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C020810.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
February 8, 2010
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re: Certificate of Review
Proposed Initiative Related to Arrest Authority
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to
Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following
advisory comments. Given the strict statutory timeframe within which this office must
review the petition, our review can only isolate areas of concern and cannot provide in-
depth analysis of each issue that may present problems. Further, under the review statute,
the Attorney General's recommendations are "advisory only." The petitioners are free to
"accept or reject them in whole or in part." Due to the number of initiatives that were
submitted for review and the available resources for performing the reviews, we did not
communicate directly with the petitioner as part of the review process. The opinions
expressed in this review are only those that may affect the legality of the initiative. This
office offers no opinion with regard to the policy issues raised by the proposed initiative.
BALLOT TITLES
Following the filing of the proposed initiative, this office will prepare short and long
ballot titles. The ballot titles must impartially and succinctly state the purpose of the
measure without being argumentative and without creating prejudice for or against the
measure.
MATTERS OF SUBSTANTIVE IMPORT
A. Introduction
This section would declare that a federal officer may not make any "arrest, search or
seizure in this state without the written permission of the [county] sheriff" unless such act meets
certain limited exceptions, some of which require the permission of the Idaho attorney general.
The sheriff can deny permission "for any reason that the sheriff or his designee considers
sufficient." The initiative requires the arrest and prosecution of any federal officer who acts
without the permission of the sheriff for kidnapping, trespassing, or theft, respectively. The
initiative also declares invalid any federal laws purporting to give federal officers "the authority of
a county sheriff."
B. The Initiative is Clearly Unconstitutional
The Supremacy Clause of the United States Constitution provides: "This Constitution,
and the laws of the United States which shall be made in pursuance thereof ... shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any state to the contrary notwithstanding." U.S. Const., art. VI, § 2
(emphasis added). State law that conflicts with federal law is "without effect." Altria Group, Inc.,
v. Good, U.S., 129 S. Ct. 538, 543, 172 L.Ed.2d 398 (2008). Under the Preemption clause, it is
"clear that federal law is as much the law of the several States as are the laws passed by their
legislatures." Haywood v. Drown, U.S., 129 S. Ct. 2108, 2114, 173 L.Ed.2d 920 (2009).
"Preemption doctrine stems from the Supremacy Clause of the United States Constitution and
invalidates any state law that contradicts or interferes with any Act of Congress." Hayfield
Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622, 627, 104 S.
Ct. 2610, 81 L.Ed.2d 527 (1984). The State of Idaho would violate the federal Constitution if it
interfered with the acts of Congress, which would include preventing enforcement of federal laws
by federal law enforcement officers and criminally prosecuting them for performing their legal
duties.
C. Recommended Revisions or Alterations
There are no alterations or revisions to this initiative that would render it constitutional.
CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and
matters of substantive import. The recommendations set forth above have been communicated
to Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alanna Grimm,
2817 E. St. James Ave., Hayden, Idaho 83835-7544.
Analysis by:
KENNETH K. JORGENSEN
Deputy Attorney General