Friday, March 24, 2017

Sanctuary Cities Violate Supremacy Clause

By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

It has always fascinated me that the liberal left progressives regularly use the Supremacy Clause as an excuse for the unconstitutional control the federal government wields over the States, but when the Supremacy Clause is actually violated, they suddenly ask about States' Rights and disregard the presence of the Supremacy Clause in the U.S. Constitution.

President Obama used the Supremacy Clause against Arizona S.B. 1050, that State's immigration law, saying that if the federal government chooses not to enforce immigration law, as per the Supremacy Clause, the States cannot have laws contrary to that federal inaction.  Never mind that in Article II, Section 3 of the U.S. Constitution the President is instructed to "faithfully execute the laws of the United States."

The federal government uses the Supremacy Clause when it comes to Abortion, as well, telling the States they cannot outright ban abortion because it would be a violation of Roe v. Wade, despite the fact that the authority over the murderous procedure is not granted to the federal government anywhere in the Constitution, and the federal courts have no constitutionally granted powers to legislate (make law).

However, when sanctuary cities and potentially sanctuary States pass laws that calls for their "right" to harbor federal fugitives who have broken federal immigration law by crossing the border illegally, the Supremacy Clause is tossed aside, forgotten, and suddenly the Democrats who normally decry State Sovereignty begin to demand, "what about States' rights?"

Current federal immigration laws require certain protocols and procedures to be followed if someone is to enter the United States as an immigrant.  The manners of these procedures were established in order to protect the receiving population, to ensure that those coming into this country are not ill with diseases that could infect residents of the United States, and that the entrants are not dangerous to the American Public as can be determined by their past history regarding criminal activity, terrorist associations or drug cartel involvement.  In short, we have immigration laws to protect those who already live in the United States from dangerous persons that may try to insert themselves into the immigrant population.

The authority for Congress to write laws regarding the prohibition of "any" persons for "any" reason into the United States is provided in Article I, Section 9 of the United States Constitution.  In that clause the Congress is granted the authority to prohibit the "import" of persons (the authority to outlaw the Atlantic Slave Trade), and to prohibit migrants (of their choice, regardless of country of origin or choice of religion) from immigrating into the United States, as of 1808.  Prior to the enactment of immigration laws pursuant of that clause the States held all immigration authorities.  Due to the Naturalization Clause in Article I, Section 8, the U.S. Congress was already issuing immigration and naturalization acts that were essentially geared towards the language defining who immigrants, and citizens, were, prior to 1808.

The assault of State Sovereignty was swift.  The unconstitutional idea of federal supremacy over "all" State laws was reinforced repeatedly by Chief Justice John Marshall, who single-handedly created our system of case law, which, from a leftist's point of view, allows judges to "interpret" and tinker with the Constitution through their own ideological whims.  However, nothing in the Constitution provides for judicial review, nor federal supremacy over "all" State laws.  When it comes to the judges, their job is to "apply" the law to the cases they hear, but if they feel the law is unjust or unconstitutional, the judges may render an opinion indicating what their beef with the law is, but only the legislators have the authority to make law, modify law or repeal law (Article I, Section 1).

The Supremacy Clause is located in Article VI, Clause 2.  It reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution, the Supremacy Clause has been used in line with the concept of Federal Supremacy. Federal Supremacy is a concept our first Chief Justice, John Jay, believed in. During his stint on the Supreme Court Jay worked feverously to establish broader powers for the courts, and to transform the federal government into a national government. He quit the Supreme Court after failing, pursuing an opportunity to be governor of New York.

Chief Justice John Marshall spent his 36 years on the Supreme Court attempting to establish, and expand federal supremacy, and largely succeeded. Marshall is embraced by statists as the one to develop federal supremacy in his judicial opinions, the primary case being Mcculloch v. Maryland in 1819 where the Court invalidated a Maryland law that taxed all banks in the State, including a branch of Alexander Hamilton's creation, the national Bank of the United States. Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper Clause provided the basis for Congress's action. Marshall concluded that "the government of the Union, though limited in its power, is supreme within its sphere of action."

During the 1930s, under Franklin Delano Roosevelt, the Court invoked the Supremacy Clause to give the federal government broader national power. The federal government cannot involuntarily be subjected to the laws of any State, they proclaimed, and is therefore supreme in all laws and actions.

The legally, and commonly, accepted definition, as a result of the courts and the persistence of, regarding the Supremacy Clause, is that all federal laws supersede all State laws.

The commonly understood definition of the Supremacy Clause is in error. To understand the true meaning of this clause, one must pay close attention to the language used.

If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a State, or city, passes a law that contradicts that constitutional federal law, the federal government's law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.

An example of the federal government acting upon the assumption that all federal law is supreme over State law is when the medical marijuana laws emerged in California in 1996 after the passage of Proposition 215. Though I do not necessarily agree with the legalization of the casual recreational use of marijuana, and believe "weed" should be heavily regulated like any other pharmaceutical drug if being used for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.

California's law legalizing marijuana for medicinal purposes was contrary to all federal law that identified marijuana as being illegal in all applications. Using the commonly accepted authority of the federal government based on their definition of the Supremacy Clause, federal agents began raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government. From a constitutional point of view, then, the raids on medical Marijuana labs in California were unconstitutional actions by the federal government.

The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.

Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that State laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all States, in the same way. If a State was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.

The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The clause establishes three things as being potentially the supreme law of the land. First, "This Constitution." Second, "Laws of the United States which shall be made in pursuance thereof." And Third, all Treaties made, or which shall be made."

"This Constitution" is the supreme law of the land. Understanding that first part of the clause is easy.

The second one has a condition attached to it. "Laws of the United States which shall be made in pursuance thereof."

In pursuance thereof? In pursuance of what?

Of "This Constitution."

Therefore, if a law is not made "in pursuance" of "This Constitution," then the law is an illegal law, and cannot possibly be the supreme law of the land. Unconstitutional laws are not the supreme law of the land, which reveals that "all" federal laws are not the supreme law of the land - only the ones which are made in pursuance of the United States Constitution. Illegal law made outside the authorities granted by the Constitution of the United States cannot legally be the supreme law of the land.

The reverse is also true.  If a federal law is "in pursuance" of "This Constitution," then it is the supreme law of the land, and the States cannot legally have laws contrary to it.  Immigration laws, as we have already discussed, prohibiting persons from entering the United States for any reason (and executive orders executing those laws as well, for that matter) are completely constitutional, therefore, the States cannot have laws contrary to those immigration laws.  Sanctuary City and Sanctuary State laws are not only in violation of the Supremacy Clause, but are in direct violation of federal law by allowing the harboring of federal fugitives.

-- Political Pistachio Conservative News and Commentary

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