- - Monday, July 2, 2012


The Supreme Court twice last week abandoned the Constitution to give new powers to the federal government and the Obama administration. The question for conservatives and patriots is: What can be done about it?

In Monday’s Arizona ruling, the majority opinion, written by Justice Anthony M. Kennedy, creates a totally novel and illogical doctrine of federal pre-emption. In Thursday’s Obamacare ruling, Chief Justice John G. Roberts Jr. goes through unprecedented contortions to effectively rewrite the Patient Protection and Affordable Care Act as a taxation measure, not an unconstitutional expansion of the commerce clause.

It will strike many Americans as especially noxious and foolhardy to give Attorney General Eric H. Holder Jr. and his Justice Department lawyers such broad discretionary powers of law enforcement when Congress is moving toward removing him from office.

There also is a weird irony and alarming disconnect at play when the Supreme Court says the executive branch may defer to the feelings and interests of foreign governments in enforcing our immigration laws at the same time the Justice Department is under investigation for running an arms-smuggling operation in flagrant violation of Mexico’s sovereignty.

The Arizona ruling is overshadowed by the more far-reaching Obamacare ruling, but it has implications far beyond immigration law. That ruling looks into the constitutional history of pre-emption doctrine and discovers new territory never mapped before. States are forbidden not only to enact laws that go againstfederal law in the realm of immigration, but to enact laws that are totally consistent with federal law and, in fact, support and enhance federal enforcement.

According to the Supreme Court’s ruling, the federal government is justified in not enforcing a law - and forbidding a state government from such enforcement as well - if its enforcement might trespass on the federal government’s foreign-policy interests. This doctrine opens up a huge can of worms for law enforcement generally, and not just immigration law enforcement.

Mexico and other nations in the people-export business are objecting to enforcement of U.S. immigration law because it adversely affects Mexican nationals living unlawfully in our country. The Supreme Court says this is a legitimate concern of the federal government and therefore a legitimate reason to not enforce laws. To have this idea codified in a Supreme Court ruling, to borrow a phrase from Justice Antonin Scalia, truly boggles the mind.

There are legitimate and well-understood grounds for federal pre-emption when a state legislates in an area which either the Constitution or Congress has claimed for exclusive federal jurisdiction. States cannot establish their own currency or undertake diplomatic relations with foreign nations. But in many areas, Congress has legislated without claiming exclusive jurisdiction, and even when it is claimed, state laws that merely supplement federal law always have been deemed constitutional. Thus, Justice Kennedy had to resort to a tortured reading of congressional intent to reach his decision in the Arizona case.

An example is Justice Kennedy’s analysis of the federal law requiring aliens to register with the federal immigration agency and always carry their alien-registration document. He says that because Congress has legislated on alien registration, states cannot make laws in that area.

But Arizona’s S.B. 1070 in no way contradicts the federal law on alien registration. Arizona has not attempted to set up a different or conflicting alien-registration system. Arizona merely said it is a violation of state law not to have those documents in your possession and police officers have a right to ask to see those documents. The court said only the federal government can enforce that law, not state governments. This prohibition goes far beyond the language found in the law.

The court’s Arizona ruling gives not only the Obama administration but any future president the discretion to disregard any federal law. Gone is the section of the president’s oath of office to faithfully enforce the laws to the best of his ability, “so help me God.”

As Justice Scalia said in his scathing dissent, which he read aloud from the bench on Monday morning, this ruling effectively puts a nail in the coffin of state sovereignty. It also empowers and emboldens every nation on earth to expand its export of people to our shores and across our borders.

Tom Tancredo is a former Republican presidential candidate and congressman from Colorado. He is president of the Rocky Mountain Foundation.

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