October 28, 2022
WWCSD? What Would a Constitutional Sheriff Do?
By: Doug Traubel
The adjective in the title of this essay begs a question. What is it that distinguishes a constitutional sheriff from a sheriff? The short answer is that a constitutional sheriff understands his oath of office and demonstrates its relevance. The oath is front and center in his policing and policy decisions. His oath is a source of courage and restraint day-to-day.
Article VI of the Constitution for The United States of America requires all legislators, executive and judicial officers of the federal government and several states take an oath or affirmation to support the Constitution for the United States of America. The Constitution for The United States of America is the highest law in the land.
Sheriffs are executive officers and therefore required to take the oath. For most of Americas 3,100 sheriffs the day they are sworn in is the last time “the oath” shares the same room. (The same goes for legislators, judges, and other executives). They might use the adjective, “constitutional” on a campaign sign, but cannot articulate or demonstrate the meaning in any substantive way.
The Constitution was written in the spirit of the Declaration of Independence where in it we are told the purpose of government is to secure God-given rights. Read that again: “God-given rights.” Man does not give us our rights. There are self-evident truths/rights that we are born with; among them are: the right to life, liberty, and the pursuit of happiness.
The Constitution is a limiting document. In essence, it is the employee handbook of the federal government. The federal government was created by the states and chained down by a constitution that limits its powers and jurisdiction to only what was delegated. The misinterpretation by the US Supreme Court of the Commerce Clause and the Necessary & Proper Clause in the Constitution have resulted in the federal government becoming drunk and unruly on power it was never intended to consume.
The federal government created by the states in 1789 would be unrecognizable to the Founding Fathers today. Interposing (sworn officials putting their oath in action by standing between the citizen and government overreach) is the first step in restoring the republic. (Complementing acts of interposition is nullification by states and juries, topics for another essay.)
Back to the oath. For an oath to the Constitution to matter, the official taking it needs to know what the Constitution is, its origins and our founding ethos. Constitutional sheriffs understand these things; particularly those trained by the CSPOA (Constitutional Sheriff and Peace Officer Association).
The Office of Sheriff is unique. It is the only elected law enforcement position in the country. This is a fundamental distinction because the sheriff’s power comes from a mandate of The People. He works for The People. His oath is not to a mayor, county commissioner(s), judge(s), governor, or the president. The sheriff’s oath is to the Constitution for the United States of America and to the State Constitution. The People are his boss.
You might be scratching your head over what the esoteric and abstract concept of the oath-in-action has to do with a sheriff turning keys in a jail and patrolling where the tumbleweed blows.
In the minds of most people the sheriff is typically associated with rural settings and jails. That picture falls short of a broader and more important role seldom exercised. Sheriffs have visible powers and responsibilities set in state code. This is the part you see every day. He is a crime fighter. He maintains the jail. He enforces court orders and serves civil process. The list of duties goes on, but first and foremost, the sheriff is the “CLEO” (Chief Law Enforcement Officer). It is of the utmost importance that the voter and the sheriff know this. City limits do not apply to the sheriff. He has the duty, and discretion to unilaterally step in when and where he deems necessary. Furthermore, Idaho code gives the sheriff the authority to summon as many inhabitants of the county as needed to perform his duty.
CLEO is a term used in a 1997 US Supreme Court case Mack/Printz v. USA. This lawsuit was brought and won by a group of sheriffs challenging an unfunded federal mandate that threatened their arrest for not enforcing a federal law. In the majority opinion it was reaffirmed that the Sheriff is the “CLEO.” The sheriff cannot be pressed into federal service. Furthermore, Idaho Code 31-2202 states: “DUTIES OF SHERIFF. The policy of the state of Idaho is that the primary duty of enforcing all penal provisions and statutes of the state is vested with the sheriff of each county…”
Also, there is Idaho Code 31-2227: “ENFORCEMENT OF PENAL LAWS — PRIMARY RESPONSIBILITY. (1) Irrespective of police powers vested by statute in state, county, and municipal officers, and except where otherwise provided in Idaho Code, it is hereby declared to be the policy of the state of Idaho that the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties.”
You can see the importance of vetting Idaho’s 44 sheriffs AND prosecutors to determine who is “constitutional.” Reflecting on the complicit conduct by sheriffs and silence from prosecutors during Governor Little’s reign of COVID tyranny vets all of them for you. These weak establishment office holders are up for re-election in two years. Bonner County’s Sheriff Daryl Wheeler and Adams County Prosecutor Chris Boyd are the only two exceptions I am aware of that put their oath in action. Clean house Idaho! Find your 2024 constitutional candidates now. Time is not on our side. The Marxists are sewing it up.
A constitutional sheriff is duty bound by his oath to interpose. He must stand between The People and government overreach. There are times when a constitutional sheriff must defy law in order to honor his oath to the highest law in the land. For example, when churches were shut down during “the COVID pandemic” a constitutional sheriff would have interposed and not allowed city police or state police to act on such orders in his county. He would have refused to take any prisoners from such arrests. Closing churches violated the First Amendment of The Bill of Rights and Art I, Sec 4 of the Idaho State Constitution.
If COVID 2.0 hits during a second term by Governor Little and there are constitutional sheriffs who interpose, the governor has power to push back: “IC 31-2227 (3) When in the judgment of the governor the penal laws of this state are not being enforced as written, in any county, or counties, in this state, he may direct the director of the Idaho state police to act independently of the sheriff and prosecuting attorney in such county, or counties, to execute and enforce such penal laws. In such an instance, the attorney general shall exclusively exercise all duties, rights, and responsibilities of the prosecuting attorney.” This can become quite sticky. Even more reason to elect the one constitutional governor candidate in the race (Ammon Bundy) on November 8th.
Another (hypothetical) example of interposition would be a constitutional sheriff physically standing between The People and the ATF if the federal government declares possession of the AR-15 illegal. Confiscation and registration of firearms is prohibited by Art I, Sec 11 of the Idaho State Constitution.
These are black & white examples of overreach where constitutional sheriffs are bound by oath to interpose. One last example is arresting agents from federal regulatory agencies (such as the USDA) for trespass if they do not leave private property. Constitutional sheriffs know that regulations are not law because they were not made by Congress. The Constitution is clear that Congress has all power to make law. The Administrative State and its regulations are unconstitutional. Regulations are not law even though they are enforced by armed federal bureaucrats wearing police costumes. Constitutional sheriffs do not legitimize the illegitimate by deputizing federal bureaucrats; they interpose and even eject them from the county. (*except from lands where the federal government enjoys “exclusive control” per Article I, Section 8 i.e., post offices and military bases, as opposed to lands only under federal “proprietorial control”–Inventory Report on Jurisdictional Status of Federal Areas within States (June 30, 1962), commonly referred to as “the Eisenhower Report.”).
It is imperative to find, train and install constitutional sheriffs and prosecutors in 2024. It is equally imperative to install a constitutional governor (Ammon Bundy) and constitutional attorney general (Raul Labrador) now. The combined effect moves us toward a restoration of the republic through continuity of interposition and flexing state power/sovereignty to protect our borders and claim lands that should long ago have been transferred to Idaho.
The adjective, “constitutional” that modifies the noun, “sheriff” is very important. It boils down to the oath-in-action. An oath is a solemn promise. I liken it to wedding vows. It is taken in front of witnesses. The witnesses expect the oath-taker to be an oath-keeper.
When sheriffs do not put their oath in action by interposing, the constitution is rendered toothless and government is unrestrained.
Doug Traubel is a veteran lawman and author of Red Badge – A Veteran Peace Officer’s Commentary on the Marxist Subversion of American Law Enforcement & Culture and Can They Do That?How Police Get Around the Fourth Amendment.
Doug has been an adjunct instructor at Boise State University and an instructor at the Idaho State Police Academy on the topic of gangs.
Doug ran for Ada County Sheriff in 2021 during an appointment process prompted by an unexpected vacancy.He was voted the # 1 candidate out of three finalists by the Republican Central Committee, but was passed over by the Board of County Commissioners who appointed the number three (establishment) candidate, Matt Clifford. Doug challenged Matt in the 2022 primary election for a two-year term and lost garnering 35% of the vote. The office is up for election again in 2024.