MEMBERS ONLY: Why Sheriffs Like Joe Arpaio Believe They Can Break the Law

by Jeremy Fassler

Donald Trump’s pardon of Arizona Sheriff Joe Arpaio has been rightly criticized from left-wing outlets like The New Yorker, to right-wing ones like The Washington Examiner. Arpaio, pardoned before he had been properly sentenced, was found guilty of criminal contempt this past July for disobeying previous court orders from 2011 that ordered him to stop racially profiling drivers and detaining them without notice. After he disobeyed those orders, he received a 2013 injunction preventing his office from arresting Latino drivers based on the belief that they were there illegally. Arpaio stated that he would not be arrested for “enforcing the law,” and apparently Donald Trump agreed, telling the audience at the Phoenix rally that he was only convicted for “doing his job.”

Arpaio, along with other recent sheriffs (Milwaukee’s David Clarke, Arizona’s Richard Mack, Oregon’s Glenn Palmer) represent a radical right-wing fringe movement that has taken the form of a group called the Constitutional Sheriffs and Peace Officers Organization [CSPOA], founded by Mack and Arpaio and documented in Politico this weekend. The organization itself may be recent, but it is the newest iteration of a bigotry that has taken many forms for over more than a century. 

Our story begins with the presidential election of 1876, when Democrat Samuel J. Tilden won the popular vote, but did not receive enough electoral votes to assume the presidency. Thanks to a backdoor deal in Congress, Republicans handed the Oval Office to Ohio governor Rutherford B. Hayes. A year into Hayes’s presidency, Congress, controlled by the Democrats throughout the entirety of his one term, got their part of the bargain fulfilled when they passed a significant and wildly misinterpreted act, the Posse Comitatus Act of 1878. Latin for “power of the county,” the Posse Comitatus Act got its name for its provision in section 15 that says:

“From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.”

The phrase “posse comitatus” in this context, refers to a British law that dates back to their Civil War, in the 1640s, that gave county sheriffs the ultimate authority in deciding local disputes. The same applied to this new US law, saying that federal troops could no longer intervene in local situations, and that the sheriff represented the ultimate authority in this situation. Democrats at the time were not concerned with writing a law for the purpose of giving sheriffs more power. They had a more immediate outcome in mind, and it was one that the law succeeded in doing: ending Reconstruction. With federal troops removed from the South, former Confederate states, who now had representation in the United States Congress, no longer had to enforce the 14th and 15th amendments. This led to Jim Crow, the rise of the KKK, and the suppression of African-Americans at the ballot box. 

During the mid-1950s, a local reverend found himself alarmed when Dwight D. Eisenhower sent federal troops to Arkansas to protect the Little Rock Nine. The reverend, William Potter Gale, was a Christian Identity preacher who believed, among other things, that Jews were the spawn of Satan. In the late 1960s and early 1970s, he began a radical anti-tax, anti-government movement called Posse Comitatus, which combined his Christian Identity beliefs with a radical libertarianism that stated the federal government had no authority to tell you what to do as sovereign citizens, and the only law enforcement you need to obey in this country is the sheriff. 

With a toxic mixture of racism, anti-semitism, and anti-government advocates, along with a leader who told his followers things like, “You’ve got an enemy government running around…its source and its location is Washington, D.C.,” Posse Comitatus was bound to cause collateral damage at some point. The first national case of a posse comitatus member gone rogue came in 1983 when Gordon Kahl violated his parole after being arrested for not paying his taxes. Kahl murdered two US marshals in a North Dakota shootout before he was killed in a shootout in Arkansas, where he was hiding out. Soon, other people began to defend themselves under claims that the United States was violating their rights as posse comitatus; Randy Weaver, killed in the Ruby Ridge standoff with the ATF in 1992, had been involved with posse comitatus, and Timothy McVeigh defended his bombing of the federal Alfred P. Murrah building in Oklahoma by claiming he was getting revenge on the government for violating posse comitatus during the 1993 standoff in Waco. Over the last few years, it has made a comeback, with rancher Cliven Bundy constantly reminding Fox News viewers (and other outlets) during his standoff in 2014 that the only law enforcement officer he would respect was the sheriff.

All this has now led to the Constitutional Sheriff’s movement, of which Joe Arpaio is a part, consisting of sheriffs across the country who have internalized the belief that the Posse Comitatus Act gives them supreme power to override the authority of the federal government and decide what the law is for themselves. In his Politico article, Robert Tsai explains how this violates the Constitution:

“When an irreconcilable conflict emerges between federal law and a subordinate source of law, federal law prevails. The office of sheriff itself is a creature of state constitutions and state law rather than some unchanging “common law” that supersedes federal law. Under long-standing constitutional principles, the federal government’s power to implement national policy reaches wherever is necessary to make that policy effective, as long as it doesn’t contravene a specific power that has been reserved for the states. Nowhere did the framers explicitly authorize local government officials and lawmen to act as final authorities on the Constitution’s meaning.”

This bedrock of our society violates the sheriffs’ belief in interposition, a term made famous in the 1950s when Southern schools refused to go along with the Supreme Court’s ruling in Brown v. Board of Education. Today, Arpaio and Mack have amended the meaning of that term, using it to give themselves more power in deciding when and how the federal government can do any sort of business in their county. These beliefs are not merely Joe Arpaio’s excuses for his racism; they are justifications.

Throughout his hearings, Arpaio insisted on referring to himself as a “constitutional sheriff,” and claimed over and over that he did not violate his oath of office. Like other sheriffs who have acted similarly over the past few years, he believes that he is the supreme law of the land, and not a local official meant to keep the peace. He hates the government, and yet he still partakes in it, only to throw its laws in his face. And he may even challenge Arizona Senator Jeff Flake in the 2018 primaries. God help us all. 

One has to look past Arpaio’s use of terms like “constitutional sheriff,” and whatever expertise he may have in this one aspect of federal law, just as one must also look past it in Timothy McVeigh (whose writings on the Posse Comitatus Act were enough to impress none other than Gore Vidal). This law has always been an excuse for racists like him to commit acts of violence against other citizens and against the United States Government in general. 

While we cannot count on this Congress to do anything about it, it is up to us to make sure that the next one to come under Democratic control fixes it.