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Dan Rodricks

Dan Rodricks: In defending Trump against FBI, Maryland’s Dan Cox makes a ‘constitutionally stupid’ argument | COMMENTARY

Dan Cox, a Maryland state delegate from Frederick County, won the Republican nomination for governor of Maryland in July's primary election.

With his degree from Regent University School of Law — currently ranked 142nd in the nation by U.S. News & World Report — and his claim of being a “constitutional attorney,” you’d think Dan Cox, the Trump-endorsed candidate for Maryland governor, would know about the supremacy clause.

And I don’t mean “white supremacy clause” — just “supremacy clause,” as in Article VI of the U.S. Constitution.

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It says the Constitution and constitutional laws that flow from it “shall be the supreme law of the land.” In other words, federal law trumps state law.

The clause further declares — now pay attention, Dan Cox, because this part applies to you — that “the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution.”

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Cox, a Maryland state delegate representing Carroll and Frederick counties, won last month’s Republican gubernatorial primary.

The other day, when former President Donald Trump reported that his Florida mansion had been searched by agents of the Federal Bureau of Investigation, Cox reacted in a predictable way: Like many members of the Trump cult, he joined in howling outrage that the FBI would do such a thing. He pledged to oppose the “criminal acts of the current administration,” without, of course, delineating what they were.

The Republican Party, once the “law and order party,” is upside down. The Trumpiest of GOP leaders couldn’t be bothered to raise their voices on Jan. 6, 2021, when a Trump-inspired mob attacked the U.S. Capitol. (Cox, in fact, arranged for three buses to take Trump supporters to Washington to “stop the steal.”) But the FBI executes a court-authorized warrant on Mar-a-Lago, and Republicans go loco.

Cox said that, if he became governor and such a thing happened here, he would order Maryland law enforcement agencies to “stand against” the federales, essentially ignoring the supremacy clause.

Here’s how he put it on Facebook: “As governor I will use the 9th and 10th Amendments, the Maryland Constitution and Declaration of Rights, the [Maryland State Police] and Maryland [National] Guard to stand against all rogue actions of this out of control tyrannical Biden administration with fierce tenacity.”

So Cox characterizes a federal search, based on probable cause of a crime and authorized by a federal magistrate, as a “rogue action,” as if a black-ops gang of FBI agents broke into Trump’s mansion. In the same sentence, he suggests that the search was ordered by the White House. Like many Trump disciples, he makes more noise than sense.

In his effort to sound like a “constitutional lawyer,” Cox fails miserably.

For the record, the Ninth Amendment to the Bill of Rights says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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You don’t hear much about the Ninth Amendment because it is rarely invoked in legal arguments.

Before the Civil War, people who hated federal supremacy cited the Tenth Amendment as they argued for “states’ rights.” And while the Tenth has had some currency at the Supreme Court in recent years, it’s still a stretch for Cox to invoke it with regard to the FBI and Mar-a-Lago.

“The problem for Cox and Trump is, this is not a Tenth Amendment issue,” says Mark Graber, professor at the University of Maryland Law School and a constitutional scholar. “There is no dispute, not even among the most conservative of judges, that when federal agents demonstrate the probability of a crime, they may search a private residence within a state. Otherwise the FBI could operate only in Washington, D.C. So the notion that this is a Tenth Amendment problem is constitutionally stupid.”

Michael Meyerson, professor at the University of Baltimore School of Law and a constitutional law expert, put it this way: “The 10th Amendment does not eradicate the supremacy clause. Since the federal government has the unquestionable constitutional authority to seek search warrants for federal crimes, the 10th Amendment would give not the slightest justification for a Governor Cox to unleash the Maryland State Police and Maryland National Guard against the FBI were Mar-a-Lago located in Ocean City.”

In campaign literature, Cox offers the usual right-wing rhetoric about stopping “transgender indoctrination” and discussions about racism in public schools.

His main theme is “Restore Freedom to the Free State,” and he relies on tired complaints about health mandates (masks and vaccines) to make the case that Marylanders are in need of liberation.

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Cox also promises to “establish law and order in Baltimore City” even as he decries a legitimate investigation of Trump.

In all of this, Cox does not sound like a leader. He sounds lost.

How do you continue to argue against public health advisories after so many lives were saved because of them?

How does any American accept that any of us, former presidents included, are immune from accountability?

How do you blindly support a politician who has no respect for the Constitution and the rule of law?

How do you claim knowledge of the Constitution then promise to defy it for political reasons?

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It is a crooked path to nowhere, and Dan Cox has chosen it.


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