Elected v. Appointed Sheriffs Part 3
Elected Versus Appointed Sheriffs, Part 3
Why sheriff defiance of public health orders shows populist tyranny in real-time
Last week, New York Governor Cuomo called some sheriffs “dictators” in a press conference when asked about a group of upstate sheriffs who have publicly said they would refuse to enforce his public health orders, namely a provision that limits the size of private gatherings.
In response, the sheriffs fired off press releases, Facebook posts, and a media tour, arguing that they would not be “peeking into windows” or “counting cars” to see how many people were inside a house. This, they say, would violate the 4th Amendment’s prohibition against search and seizure or, as they like to call everything, the “Constitution.” (Those who have been the victims of raids on their homes might wonder why this sudden reverence for the sanctity of the home is only now just revealing itself.)
Sheriffs across the country have opposed mask-wearing mandates, business closures, and gathering limits since the beginning of the pandemic, and have defended their views with vague claims about individual liberty. One sheriff in Idaho has even argued that there is no pandemic based on his personal assessment of the number of COVID-19 deaths he knows about.
Sheriffs are not health experts or epidemiologists. Yet, they have been extremely vocal in opposing health regulations related to coronavirus, using the same "liberty" arguments they deploy against gun laws. In fact, a quick skim of the Facebook comments for no-mask sheriffs shows the same rhetoric of personal responsibility and liberty, often accompanied by a call to eliminate so-called “red flag laws.”
I have two broad ideas about these events:
Urban v. Rural
In many rural regions, the locally elected sheriffs become a primary form of political power in state government. Every county gets one elected sheriff, no matter the size or population density. These sheriffs form a substantial lobbying block in the state legislature. This rurality aligns with the political issues favored by sheriffs: unencumbered land use, expansive gun rights, and deregulation. (I am generalizing very broadly here since “rurality” is far from monolithic.)
Of course, these features are not fixed. For example, sheriffs have embraced domestic violence as an issue that aligns with their financial and political goals – to keep more people in jail and demand bigger budgets. Same with the overdose epidemic. More sheriffs, even those who are politically conservative, are slowly moving towards the rhetoric of “treatment” (albeit confined to a jail). Of course, rhetoric isn’t action, but the change strikes me as an embrace of a social issue important to rural communities that also guarantees the role of sheriff will remain relevant. It also allows for sheriffs to argue an “us v. them” mentality by distinguishing between out-of-state dealers and “good community members” who are unfortunately trapped and preyed upon.
Populism v. Professionalization
The election of Trump in 2016 and the 2020 results, where Trump managed to increase his voter turnout, leave little doubt as to the appeal of populism in American politics. In today’s rhetoric, this translates into “making criminals out of normally law-abiding citizens,” as one sheriff said, a direct descendant from the idea that sheriffs “know” who is a “good kid.”
Sheriffs are, in essence, the original form of populism. As urban police departments grew in popularity – along with the rise of federal professional law enforcement, like the FBI – rural sheriffs became an anachronism, and they know it. Unlike police chiefs, they generally are not required to be formally trained (although many big city sheriffs are). They often come from backgrounds in politics, the military or law enforcement. Some are even from unrelated areas like sales or management.
While sheriffs claim to be closer to community input because they are directly elected, the political nature of their job leads them to make broad claims about which laws are enforceable and unenforceable. In other words, while all law enforcement exercise discretion in enforcement, only sheriffs gain political capital from broad, unsupported statements about the rights of legislative or executive branch members to make laws that are politically unpopular with the sheriff’s electorate. After all, sheriffs do not need to operate within the broader political structure of the state or nation nor do they need to be concerned with how other communities construe their words; they only need to win the next election. Broader frameworks like human rights or civil rights are meaningless because their interpretation of the law is only relevant to that particular community.
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In my view, county sheriffs’ claim that the enforcement of public health orders is “unconstitutional” is specious. First, executive orders have the force of law, and it’s quite clear that governors have the power to implement emergency measures for public health.
Second, even under a legal theory of public health orders with some criminal consequences, there’s no reason to think they are in conflict with the U.S. Constitution. I am not a Constitutional scholar, so I hesitate to make broad claims about privacy interpretations. The current debates are purely political commentary and about as legally vacuous as Trump’s claims that the election was fraudulent. But, like Trump’s meaningless lawsuits, in today’s media environment, just making the statement is enough to cause some people to believe it. And that’s often enough to win an election.
Other Reading
1. Chester County, PA, Sheriff “Bunny” Welsh was charged with theft for improperly using donations to the K-9 unit to pay her boyfriend bonuses. Welsh, no longer sheriff, was one of the early "Trump sheriffs."
2. South Dakota sheriff sues to block a recreational marijuana amendment passed by voters. How democratic is that?
3. New York City’s sheriff has been tasked with breaking up non-COVID-compliant gatherings. (They have an appointed sheriff.)
4. Shalia Dewan at the NYT posits a relatively optimistic theory that both sides of the aisle are invested in criminal system reform. I would argue that the issues supported by those on the right tend to align with Christian, pro-life interests, and focus on individual redemption, not systemic changes. Lather, wash, and repeat as needed to win the election.