May 25, 2018
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Can Anne Arundel Opt Out?

Councilman Michael Peroutka
Councilman Michael Peroutka's picture
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May 3, 2017

At the April 3 county council meeting, I offered a resolution concerning the Maryland Trust Act, which was at that time pending a final vote in the General Assembly. My resolution received significant support and attracted a great deal of opposition. You might say that the public hearing on the resolution was “spirited.”

Essentially, the resolution urged members of the General Assembly to vote against the Maryland Trust Act. I offered this resolution as a response to what I perceived to be an unlawful and unwise path taken by the General Assembly. Briefly, here is my rationale and a little background.

If you regularly follow the proceedings of the council or if you have read some of my columns, you know that I frequently raise objection to overreaches by the federal government. It seems to be the rule rather than the exception that federal agencies and bureaucracies take actions that are beyond the limited and enumerated powers granted to them by the terms of the U.S. Constitution.

For example, when we debated the repeal of what has been termed the “rain tax,” I argued that the requirements imposed on states and localities by the Environmental Protection Agency (EPA) — and which drove the adoption of the “stormwater management fee” — were invalid and ought to be ignored by all political subdivisions. This is because the constitution nowhere grants authority to Congress to establish the EPA or to engage in environmental regulation.

So, it must have seemed strange for me to argue in favor of the authority of the federal government. But in the case of the proposed Maryland Trust Act, that is what I was compelled to do. And the reason is straightforward.

You see, in this case, it is the federal government acting within the jurisdiction granted to it by the constitution, and if this piece of legislation were to be enacted, it is the state of Maryland that seeks to interfere with the exercise of the duty delegated to the federal government pursuant to Article IV, Section 4, of the constitution.

I am grateful that the sponsors of the act decided to let it die for now, but I remain concerned that they will revive it during the next legislative session.

And should a future General Assembly revive and enact some version of the Maryland Trust Act, in my judgment, the enactment will be void and it will be necessary for our local law enforcement officials to disregard it as they perform their peacekeeping duties.

It is well established throughout English and American jurisprudence that enactments that are not constitutional are not law. Back in 1886, in the case of Norton v. Shelby County (118 U.S. 425), the Supreme Court of the United States said this:

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.”

Following this understanding, it is crucial that all citizens and their local elected officials be able to confidently recognize that which is lawful and that which is not. Local officials have a duty to follow the law, even when “higher” officials direct them to do otherwise. Discerning the lawfulness of statutes or ordinances or regulations is a necessary ability of a lawmaker or a peacekeeper because at some point the official may have to decide not to follow an unlawful order. This decision is an anxious and awkward one. For an official to make such a judgment, he must be confident in his knowledge of the law and of its source and nature.

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