Category Archives: Arizona law

Who Enforces The Constitution?

By Jerry McDaniel

The number of people calling for Constitutional Amendments and Conventions seems to be growing along with America’s increasing dissatisfaction with Barack Obama and the direction his administration is taking the country. I have never quite understood the call for adding more amendments to the Constitution, but since so many of our fellow citizens seem to think that would solve our problems, why not give it a try.

We could start with an amendment listing what it is that we want the government to do for us, and then we could add one forbidding them to pass laws not related to those functions. How about one that says government cannot tax us except for what is necessary to carry out the functions listed? While we are at it, why not pass an amendment allowing us to keep firearms for the protection of our families and perhaps even allowing us to carry them when we go out in public? We could also pass an amendment forbidding government to interfere with our right to express our own mind when it comes to politics and religion. In fact, we could just tell the government our religious practices are none of its business. We could also pass an amendment that allows only Congress to make law, not the President, bureaucrats or judges.

My point is that calling for more constitutional amendments is like Mayor Daley of Chicago asking for more gun control laws to control crime. It is obvious that criminals who commit crimes with firearms are not particularly intimidated by laws against robbery, murder, assault and so on. So why would we expect them to be intimidated by more laws against guns. The same thing applies to adding more amendments to the constitution in the hope that they will in some way influence what government does. Adding another amendment to the Constitution is simply adding another law to regulate government to those already contained in the Constitution.

Any law is effective only when there is a very real likelihood that a penalty will be exacted for its violation. When the criminal knows there is little chance of their being punished for what they do, the fact that it is illegal will not prevent them from committing the crime. The same thing is true with members of government. The Constitution, along with its amendments is the law for government; therefore it applies mainly to politicians and government officials. The only penalty for its violation is removal from office, either through impeachment or through the ballot box. Expecting Congress to impeach its members for violating the Constitution is like deputizing Jesse James to apprehend train robbers or John Dillinger to arrest bank robbers.

The reason illegal immigration is the problem it is today is because those who are responsible for enforcing immigration law are not doing their job. Most thinking Americans realize that simply adding more laws will not correct the problem. The reason government’s violation of the Constitution is the problem it is, is because those responsible for enforcing it are not doing their job. Virtually every elected official who has been in office for any length of time is guilty of violating the Constitution. It is a crime to violate the Supreme Law of the Land, and yet, ninety to ninety-five percent of all incumbent politicians are returned to office by the voters to continue their criminal activities.

It is not the role of the Supreme Court or the Justice Department to enforce the Constitution any more than it is responsibility of drivers to enforce traffic laws. It is their duty to follow the law not to enforce it. When it comes to the enforcement of the Constitution, we, as voters, are the Prosecutor, Jury, Judge and Executioner. We are solely responsible for enforcing the rule of law on government. Until the American people realize and accept this fact, we can add all the amendments we want to the Constitution and it will make no difference. As long as we shirk our duty as the watchdogs of government, we have no right to expect someone else to do our work for us.

The voters of Arizona, while bemoaning the out-of-control problem with illegal immigration, again nominated John McCain as their candidate for Senate in the November elections. McCain has been one of the leading advocates for “comprehensive immigration reform” and amnesty for years. Illinois voters nominated progressive Mark Kirk as their candidate, again one of the most constitutionally criminal republicans on the ballot. Are we really sincere when we demand a return to Constitutional government and then go into the voting booth on Election Day and vote for a candidate that we know from experience, will not honor his oath of office and defend the Constitution?

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The Case For Impeachment

A Tea Party group in San Diego, California is holding a rally on August 28, to demand the impeachment of President Obama. On its blog site, the group gives as a reason for impeachment, “loss of public confidence”. It seems our friends in California have confused our form of government with a parliamentary system where heads of government are routinely removed from office by a vote of “no confidence”. Under a parliamentary system, a coalition of the political parties making up the membership of Parliament elects the Prime Minister. When the coalition loses confidence in the PM to lead the nation effectively, they remove him from office and replace him with another.

In America, the people elect the President through the Electoral College in a round-about and complicated process. No President has ever been successfully impeached and convicted in our 221-year history. It is not likely that an impeachment of Obama would be any more successful than those of Andrew Johnson or Bill Clinton. That does not mean the San Diego rally will not be a good venue of protest, and will send a message to politicians that Californians are not happy with their performance. There are plenty of reasons for impeaching Obama; a lack of confidence is not one of them. Evidently, he still has the confidence of the majority in Congress making impeachment by the House highly unlikely and conviction by the Senate all but impossible.

Impeachment for the right purpose and carried out in a proper manner can have a beneficial effect on the nation. I was not around for the Impeachment of Johnson, but I do remember the impeachment of Bill Clinton. That one quickly deteriorated into a political squabble that divided the country and accomplished little. An impeachment of Obama would be even more divisive and would not lead to removing him from office as the San Diego Tea Party wishes.  Any attempt by Republicans to bring Articles of Impeachment against Obama would immediately lead to accusations of racism and political pettiness.

The one thing most needed in America today is an increased knowledge of the Constitution by those inside and outside the government. An impeachment trial could be one of the best methods for increasing our understanding if it was properly focused. An impeachment hearing by the House of Representative is, in many ways, like a Grand Jury hearing, and as has been rightly noted, a Grand Jury “can indict a ham sandwich”. As Gerald Ford observed, an impeachable offense is whatever the House of Representatives says it is at any given time. The Constitution gives as an impeachable offense the commission of “high crimes and misdemeanors”.

The term “high crimes” is a holdover from English common law and has nothing to do with criminal activities in violation of statutory law. The word “high” has to do with the position of the official being impeached rather than the type of “crime”, the higher the position, the more serious the crime. “Crime” has to do with malfeasance in office, including such things as failure to carry out the duties of the office, favoritism, abuse of power, etc. It also might involve criminal activity such as, bribe taking, perjury, treason or other criminal acts. The penalty for an impeachment conviction is removal from office, after which criminal charges can also be filed by the Justice Department if crime is involved. Otherwise, the penalty is only removal from office and the inability to hold public office afterward.

By its very nature, conviction in an impeachment case is a highly subjective matter unless it involves an overt criminal act. In order to be effective as a teachable event regarding the Constitution, impeachment would need to be focused on a specific unconstitutional act(s) by a government official. Furthermore, the offense would have to be easily ascertainable by the general public without any legal knowledge. A perfect example was given to us last moth by Judge Susan Bolton and the Arizona Federal District Court.

The overt violation of Constitution Law is found in Article III, Section 2, Paragraph 2:

“In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such regulations as the Congress shall make”.

In order to understand the Framers’ meaning and intent, it is not necessary to refer to previous Supreme Court cases, or the Federal Code. Neither is it necessary to have any training in law. In fact, legal training seems to be a hindrance to understanding the clear meaning of the sentences used, as is often the case with Constitution questions. Understanding the motivation of the Framers is also not necessary, although the status of the four parties mentioned would seem to indicate that their motivation was to preserve the sovereign dignity of the parties to the cases singled out by the clause for special treatment.

The meaning of this paragraph stands on its own, independent of any consideration of other parts of the Constitution or other writings of the Founders. The first sentence clearly says that, in all cases in which a state shall be party, the Supreme Court has original jurisdiction. The three most common reasons given by those who either support or accept the usurpation of power by the Arizona District Court are tradition, Congresses’ power to regulate Court jurisdiction, and the Supreme Court’s acceptance of Congressional exceptions.

Neither of the three is constitutionally acceptable. The arguments of tradition and acceptance are reminiscent of the theological question debated by seminarians since time immemorial. “How long does a heresy need to continue before it becomes truth?” If District Courts have routinely ignored this Constitution paragraph since the founding of the Republic, it does not change the meaning or arrangement of the words used. Neither Congress nor the Court has the constitutional power to change the language of the Constitution without an Amendment. In this case, Congress is given the power to make exceptions to cases over which the Supreme Court has appellate jurisdiction. It is not given the power to make exceptions in cases over which the Supreme Court has original jurisdiction. The second use of the word “shall” in the first sentence precludes the Supreme Court itself from having the power to make exceptions.

This paragraph is clear enough in meaning and sufficiently vague in the understanding of the political class and ordinary citizens that it makes the ideal teaching tool for acquainting citizens with the Constitution and its interpretation. It involves one of the most clearly written and easy to understand passages in the Constitution, a clear usurpation of power by the District Court, and an overt attack on the constitutional doctrine of state sovereignty. The nation clearly needs a debate on the nature, purpose and meaning of the Constitution. We would be hard put to find a better case to start the debate than the one presented by “United States vs. Arizona”.

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The Death of Federalism

Federalism is dead in America; its Constitution on life support. With Barack Obama in the White House and progressive democrats in control of Congress, the left’s centuries old goal of a consolidated government has finally been realized. With federalism gone, the Constitution becomes little more than an interesting historical artifact to be marveled at by historians and academicians. The experiment of enumerated powers and state sovereignty no longer has any relevance in American politics.

For over two hundred years, the one defining characteristic of the American psyche has been a desire for independence and its natural twin, liberty. It was to secure and maintain this independence that the Declaration of Independence, the Articles of Confederation and the Constitution were written and published to the world. Thomas Jefferson, writing what he considered to be “an expression of the American mind” wrote in the concluding paragraph of the Declaration of Independence, these words:

“We, therefore, the  Representatives of the united States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these Colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”

For more than a hundred and fifty years, the Colonies had considered themselves as independent colonies, governed by laws of their own making, under the protection of the British Crown. Their relationship with the British government as expressed through its Parliament had always been tenuous at best. It was the increasing encroachment on the colonies independent status by Parliament that eventually led to the break with Great Britain and the Revolutionary War.

It is interesting to note that in the original copy of the Declaration of Independence on display in the Rotunda for the Charters of Freedom in Washington, D.C., and in most published copies of the Declaration, the word “united” in the first line of the final paragraph is not capitalized. It is “united States of America” not “United States of America”. The significance of this minor detail is in the type of union the Colonies envisioned. Also, notice that states never appears in the singular, always the plural. Compare the plural word “states” as used in our founding documents with the singular title, “State of Great Britain”. The colonies were “united” in their independence from England and they were “united” in defense. They did not consider themselves to be, and did not contemplate becoming a single consolidated “State” government.

The government later established under the Articles of Confederation was anything but a united, state government. In fact, the Articles were primarily concerned with mutual defense and international commerce. Article Two specifically precludes any type of central authority over the states other than the few specified.

Article Two
“Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.”

This spirit of independence held by the states was carried over in the Constitution and was the principle underlying the list of enumerated powers in the Constitution and the prohibition of encroachment by the national government on the liberties of its citizens, by the Bill of Rights, especially the Tenth Amendment. The states would never have ratified a Constitution calling for a central consolidated government. The highly venerated Federalist Papers were written primarily to convince the inhabitants of the various states that such a consolidated government could never develop under the Constitution. As it turns out, Hamilton, Jay and Madison severely underestimated the ingenuity of politicians on a quest for power, and the fears of the anti-federalist who opposed the Constitution have been proven by history, to be valid.

The difference between a “federal government” and a “national government” is more than just a matter of semantics. The national government envisioned by the present administration, regulating a centrally planned economy and regulating the private and collective lives of American citizens cannot be accomplished without uniform national laws and despotic enforcement. This fact has been made manifest by the recently passed and proposed regulatory bills of this administration concerning health care, finance, manufacturing, energy, etc. It is further manifested in the ongoing court cases in Arizona, California, Virginia and some dozen other states concerning immigration, gay marriage, energy production, etc.

The Constitution is a static document. Its words do not change with the calendar. If we are successful in taking back control of the government in the next two elections, there is hope for the restoration of limited constitutional government. However, federalism is dead. Nationalization of the central government has advanced to the point it can never be restored to the status of a federal government without major social upheavals that would never be condoned by the people. The best we can hope for is a modified national government with the gradual elimination of some if its more egregious encroachments.

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The Mystery Of SB1070

I’m stymied. For days, I have been pondering the question of why United States vs. State of Arizona was filed in Federal District Court in Arizona instead of the Supreme Court in D.C. I cannot come up with a reasonable answer. Is the fact so obvious that the District Court has no jurisdiction in this case that everyone assumes that everybody connected with the case must be aware of it, and therefore, there must be a valid reason why the case was filed in a District Court instead of before the Supreme Court?

According to the American Bar Association, there were 1,143,358 lawyers in the U.S. at the end of 2007. My guess is that thousands of them have had some exposure to the U.S. Constitution at some time during their career. Many of them may have actually read it, and some of them are surely intimately familiar with its requirements. Yet, from what I can find out, only one lawyer, a retired attorney in Tennessee has raised the question. In an article in the Canada Free Press, Publius Huldah asserts that only the Supreme Court has the authority to hear the Case involving Arizona and its law, SB1070.

Ms. Huldah bases her theory on Article III, Section 2 of the U.S. Constitution which reads.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

The Framers intent and purpose is expressed so concisely and clearly in this clause, it is hard to imagine that even the most skilled lawyer could find a loophole invalidating its meaning. This clause is not affected by the Eleventh Amendment giving states sovereign immunity from suits brought by citizens of other states or countries in federal courts. In fact, this clause has never been amended under the Article V process.

By trying this case before a lower court judge rather than before the Supreme Court, as the Constitution requires, the status of state legislatures and the states in general, is significantly diminished in relation to the federal government. By precedent, it further damages the concept of federalism and state sovereignty. More importantly, it marks the end of Constitutional government in the United States. I cannot think of any case in which the clear wording of the Constitution has been so brazenly ignored.

In most instances of judicial activism, hidden meanings, nuances, or heretofore-undiscovered meanings or principles, are found in the Constitution to lend some justification to the court’s activism. This clause does not lend itself to such speculation. To make matters worse, Governor Brewer has indicated a willingness to “tweak” the law in order to make it more palatable to the federal government.

It seems to me, the best course of action by Arizona would be to simply ignore the ruling of the lower court and continue with its plans for enforcement. Doing so would not be in defiance of “the rule of law”; to do otherwise will be. Since the Constitution is the ultimate authority for or against actions by the federal government, to submit to the authority of a lower court in this case is a denial of constitutional law. If there is no constitutional law there is no law, period; and without law, there can be no liberty.

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Another Shot To The Left Foot

Fortunately for America, the left keeps shooting itself in the foot; this time, with said foot firmly implanted in its mouth. I am talking, of course, about the ruling on Wednesday by activist judge Sarah Bolton on Arizona’s SB 1070 immigration bill. While her ruling might seem to be a setback for patriots opposed to the open borders policy of the Obama Administration, it does stoke the fire in the belly of conservatives and other patriots everywhere. If nothing else, the left seems intent on keeping the passions of patriots white hot until the November elections. We need to thank them for that.

More than 70% of the voters support Arizona’s law and a majority of voters nationwide wants their Legislatures to pass similar laws. That is a large voting block for the left to alienate, and is another bone-headed action that could help lead to the destruction of the Democrat Party in the coming two election cycles.

While the court’s ruling is only a temporary injunction until the full case in presented in court, it does for the time being, neuter the Arizona law. The court forbade the police from questioning the immigration status of suspects picked up on other charges. It also prohibited the enforcement of the federal requirement that immigrants have their immigration papers on their person at all times. It also struck down the part of the law dealing with the illegal immigrant’s ability to seek employment and perform work. It leaves in place, however, the right to bring civil suit against sanctuary cities that refuse to allow enforcement of immigration law in their jurisdiction.

Drug dealers, rapists, muggers, carjackers, and so forth can now be bailed out and put back on the street instead of being turned over to ICE for processing and possible deportation, as has been the custom. I suppose that if an illegal immigrant flags down a police car and confesses to being an illegal immigrant, the officer can still provide taxi service to ICE headquarters, although that might be risky since the illegal can always change his mind and claim the officer demanded his “papers”.

This is by no means the final chapter in Arizona’s fight against illegal immigration. All eyes are now on Sheriff Arpiao to see what he will do. He already has a planned crime and immigration sweep scheduled to take place regardless of the outcome of the court case today. Some have suggested that Arizona officials ignore the court ruling and continue with its enforcement plans. This would trigger a constitutional crisis and no one knows what the outcome would be. Frog marching Governor Brewer out of the Governor’s Mansion would certainly be an attention grabber guaranteed to provide at least a couple of day’s material for our friends in talk radio and the talking heads on TV. Even members of the MSM like the New York Times and MSNBC would find it hard to ignore. The next few days are going to be quite interesting.

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Why Left Fears Hitler Comparisons

The left cannot afford to have Obama compared with Hitler

Last week, a two hundred-member Iowa Tea Party group erected a billboard in downtown Mason City, Iowa, depicting three people under the headings of “National Socialism”, “Democratic Socialism” and “Marxist Socialism”. Underneath the headings were pictures of Hitler, Obama, and Lenin. Immediately the left went into attack mode because, according to it, the billboard compared Obama to Hitler. There were no complaints about comparing him with Lenin and there is a good reason why not.

After more than a hundred-and-fifty years of the abject failure of socialism all over the world, it is essential that the left deny the lessons of history, in order to sell its failed policies. As its grip on America’s education system grew during the last half of the twentieth century, the left began to revise American history in education curricula at every level. Contexts and facts concerning important historical characters and events important to the development of America were changed to present them in a negative light. Since World War Two, the left has worked diligently and successfully to place Hitler to the right on the political spectrum in the minds of the American people.

Historically the American left has shown an admiration for socialism as it gained strength in other parts of the world. In the late nineteenth century, it worked to spread the teachings of Marx and Lenin in America. After the communist revolution in Russia, many Americans traveled to Russia to study its social and government structure, returning to America with glowing reviews. During the Great Depression, a lot of the American Left transferred its admiration from Communist Socialism to the National Socialism of Germany.

After World War Two, the left again switched its high regard for socialism, this time to Asia. The left’s love affair with socialism and communism reached its height during the Viet Nam era. It was during that period that the left adopted the doctrine of “politically correct speech” from Communist China as an effective means for controlling political and social debate in America. Self-respecting socialists of the sixties and seventies delighted in quoting passages from Mao’s “little red book”.

National Socialism as practiced in Germany fell out of favor with the American left during and after World War Two because of the genocide and cruelty of Germany’s concentration camps. Germany simply went too far even for the most dedicated American Socialist. Since then, the left has worked to convince the American people that the atrociousness and brutality of Nazi Germany were the product of right wing political policies. Aside from the revulsion toward Hitler in the American mind, there is another reason why the left cannot afford to have Obama associated with German National Socialism.

During the twentieth century, communism and socialism spread throughout Europe, Asia and to a limited degree, South and Central America. Totalitarian socialism, for the most part, has been spread through revolution or military conquest, with one major exception: Nazi Germany. Only three totalitarian socialist leaders of any consequence have risen to power through the democratic process. Hitler, Hugo Chavez of Venezuela and Barack Obama. Admittedly Chavez and Obama are still works in progress, and the outcome for Obama is far from certain, however, the similarity in their rise to power cannot be denied other than by closing our eyes to history.

With each passing news cycle, it is getting more difficult for the national media to camouflage the true agenda of the Obama Administration. In order for American socialists (progressives) to reach their ultimate goal of a Socialist America, it must accomplish three major objectives, the dismantling of our capitalist economy, the fragmentation of our common culture and the destruction of our Constitution. In the eighteen months Obama has been in office, he has made amazing progress toward all three of these objectives.

Marshalling the socialist elements that have been growing in government for the past seventy-five to one-hundred years, Obama has focused single-mindedly on getting the nation to a point of no return during his four years in office. Following the Marxist-Alinsky playbooks, so succinctly summed up in Emanuel’s famous quote, “never let a good crisis go to waste”, he has used the EPA, the Justice Department, the Department of Energy, the Department of Homeland Security, the U.S. Citizenship and Immigration Services, and the Treasury Department to inflict, what may be irreparable damage on both the Economy and the Culture.

Nowhere is the Obama agenda more transparent than the events surrounding the Gulf Oil Spill and the lawsuit brought against the state of Arizona over its immigration law enforcement bill. His exploitation of both these events to fracture our culture and damage our economy cannot be denied. Even after losing two consecutive lawsuits concerning his moratorium on drilling in the Gulf, he refuses to accept the court’s decisions. Rather than accept the federal government’s constitutional requirement to protect our borders, he chose to file a lawsuit against Arizona to prevent it from protecting its citizens from the effects of a foreign invasion across its borders.

The damage already caused by the Obama policies will take years and maybe generations to heal. The only good news in the gloom brought about by the election of Obama is the slow but sure awakening of the American people. In less than four months we will find out if America is capable of recovery, or if we have reached the point prophesied by Benjamin Franklin, becoming so corrupted as a people that we cannot be ruled by any means other than despotism.

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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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