Battle of the Century: Obama v. Brewer

Barack Obama to Jan Brewer: “See you in court”

Secretary of State Hillary Clinton announced Friday, in an Ecuadorian TV Interview, that the Obama Administration will sue the state of Arizona over SB1070, Arizona’s new Immigration Law.

“President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy…and the Justice Department, under his direction, will be bringing a lawsuit against the act,” Clinton said.

Both Hillary and Barack are lawyers so when they agree on something it should be right.  After all, Obama is a Constitution Scholar, according to his press clippings.  Nevertheless, it is a good idea to seek other lawyers’ opinions when considering a legal issue of this magnitude. Therefore, we decided to look at what other lawyers around the country were saying on the matter.

We first read an Op-Ed piece in the Casper Wyoming Star Tribune written by Ryan Frost of the Wyoming Chapter of the American Civil Liberties Union. Mr. Frost wasn’t much help since his opinion on the law was mostly clichés like, “Creating a Police State”— his title for the article, “it betrays fundamental American values” and, “in America, everyone is presumed innocent until proven guilty”. He did get into the meat of the matter, however, with, “this law is un-American because it invites discrimination and undermines our values of fairness, equal protection under the law, and inalienable rights for all”.

To strengthen his argument, he also threw in the reminder that, “America’s history and culture is one that was created largely by immigrants”. Finally, he makes an appeal to the Constitution stating that the law “violates the Constitutional allocation of authority between federal and state governments; the Supremacy Clause makes this clear”, he wrote. Pretty powerful stuff.

Next, we turned to the Charleston, West Virginia Gazette and an article by Sean W. Cook an attorney for Meyer Ford and Glasser in Charleston.  Mr. Cook presented an argument that is a little more convincing. He writes,

“…Beyond the rallies and political battles, though, the Arizona law raises questions involving fundamental constitutional principles that have governed our nation since its inception. Most notable are issues regarding the balance of power between federal and state government and the most sacred individual rights guaranteed by our Constitution…. [It] invokes the legal doctrine of federal preemption derived from the Supremacy Clause of the Constitution. Preemption trumps all state laws directed at specific legal areas already federally regulated or addressed by Congress through legislation, as well as those state laws that conflict with or frustrate the purpose of federal law…”,

Finally, we looked at the Atlanta Journal Constitution and an article by Luis A. Velez, a magna cum laude graduate of Georgia State College of Law. Mr. Velez presents a more balanced view, citing as compelling interests the unemployment rate for U.S. citizens and the increasing Arizona crime rate, but concludes that,

“… [While] these are compelling interests, …since they are federal, not state, matters, I believe they render SB 1070 unconstitutional. The Supremacy clause of the U.S. Constitution states that federal law preempts, or ‘trumps’ state law… [U]nder Article 1, Section 8 of the U.S. Constitution, regulation of immigration and national borders are federal, not state, matters…”

As with these three lawyers, the principle argument against the Arizona law by members of the legal profession is that it violates the Supremacy clause in the Constitution, and to bolster that argument it is claimed that constitutionally, immigration is a federal issue, not state.

I suppose we should cut these lawyers some slack for their shortcomings in understanding the Constitution since law schools do not teach the U.S. Constitution. Instead, they teach case law about the Constitution. That’s kind of like the old parlor game where the guests are lined up and the first person in line is given a message, which he whispers in the ear of the person next to him. That person then whispers the message to the next person, and so on, continuing to the last person, who then repeats the message aloud. Invariably, there will be little resemblance between the message heard by the last person and the message given to the first person.

That basically is how the judicial doctrine of “stare decisis” or binding precedent works. Each time an appellate court hands down a ruling on a constitutional matter it becomes a precedent that must be considered by other courts whenever a similar case comes before it. After over two hundred years of precedents, each building on a previous ruling in a similar case, it is no wonder that there is often little resemblance between the court’s opinion and the text of the Constitution.

For example, Article 1.8.4 gives Congress the power to “establish an uniform rule of naturalization”. Naturalization is not the same as immigration. The former deals with citizenship while the latter deals with residence. The Constitution says nothing about immigration and until the early twentieth century immigration matters were left to the states under the Tenth Amendment.

An objective reading of the “Supremacy Clause” yields a similar result. The Supremacy Clause is found in Article VI of the Constitution which reads,

(6.0.2-3) “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land…and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding”.

The first thing we should notice about this passage is that it is the Constitution, not federal law per se, that is the “supreme law of the land”. In order for federal law to take precedence over state law it must first meet the Constitutional requirement of the Supremacy Clause. That is, it must be a law that is made in “pursuance” to the Constitution. In other words, it must be a law that is necessary for “carrying into execution” one of the enumerated powers. (Art 1.8.18) Immigration law does not meet this Constitutional threshold since it is not necessary for the federal government to control immigration in order to set an uniform rule for becoming a U.S. citizen.

Since immigration is not one of the enumerated powers delegated to the federal government by the Constitution it is a power that is “reserved to the states and to the people“. (Amendment 10) In the end, whether the courts rule in favor of Arizona or the federal government will depend on whether they follow the doctrine of stare decisis or the plain text of the Constitution. It will be an interesting and important case to watch.

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2 responses to “Battle of the Century: Obama v. Brewer

  1. Denise Kline

    Okay. I understand better. Is there a way to get the justices back to the plain text and start new “stare decisis” if you will??? That honors the original intent and bring back conservative values?? Can you bring some kind of law suit or send your remarks to Jan Brewer’s attorney?? Basically, what I am saying is what can the people do?? Will writing themm help?

    • The purpose of stare decisis is to maintain consistency in law. It does not create a problem when not deciding a case involving the Constitution, since the problem can be fixed by statute.

      Stare decisis is binding only on courts inferior to the court making the decision. It is not technically binding on the Supreme Court which can, and often does, reverse itself. Its influence depends on the legal philosophy of the Justice. That is why Senate confirmation hearings probe appointees as to their ideas concerning the value of precedents.

      Senators who are Constitution Conservatives favor Justices who are “strict constructionists”, ie. who base their decisions on the original meaning of the text of the Constitution. Progressives favor Justices who rely on precedent, and popular social and political trends for their decisions.

      A letter campaign is not likely to have any effect on the outcome of a Supreme Court Case, since its decisions depend more on the legal philosophy of the Justices than on political considerations (they can’t be voted out of office).

      That is why who we elect to the Senate and to the Presidency is so important. Once the Supreme Court has handed down a decision on the constitutionality of a law it can only be changed by a constitutional amendment. Justices can be impeached (not likely) but even that would not change the decision.