"When they allow a talk show host to play them like a two-dollar banjo, they demonstrate what kind of backbone they'll bring to the job later on, if we elect them. After they get elected will they continue to allow Jeff Crank to put a nickel in them and wind them up every Saturday morning?"

Barry Noreen, former columnist, Colorado Springs Gazette

Monday, August 2, 2010

Twisting States Rights and the Law

THE RIGHT WORD By Kelly Sloan
There is something particularly distasteful in the recent decision by Judge Susan Bolton to block key components of Arizona’s much-touted immigration law, something beyond the normal arrogance associated with such obviously premeditated decisions.

It may be the implication that breaking the law (in certain federally sanctioned instances) is no longer illegal, or the granting of the executive branch full discretion over what laws it chooses to enforce, Congress and the States be damned.

Or perhaps it is the federal government’s sudden concern over the separation of powers, paradoxical though it is to the original intent of that concept - the base of the federal government’s case against Arizona was that the State law infringed on Federal jurisdiction (Oh that the government would spend a fraction of the time and effort towards guarding States rights as they do towards creating their own).

In light of this argument, I now anxiously await Attorney General Holder’s righteous lawsuit against the State of Colorado for its de facto legalization of marijuana, under the auspices of medical treatment, in flagrant disregard of federal drug laws.

For me, however, it is probably the application of such unapologetically shoddy legal logic that provides the most offence.

For instance, the bizarre reasoning that uses a federal law that explicitly requires federal agencies to cooperate with local authorities by verifying citizenship or immigration status when requested; Bolden, in her decision, agonizes that Arizona’s law will result in enough of an increase of such requests as to “divert resources from the federal government’s other responsibilities and priorities.”

Perhaps if the federal government were to spend less time and resources concerning themselves about such things as what kind of light bulb hangs over some ones kitchen table, or how many times I go to the doctor, or why company X has made more money than company Y, and how to squeeze Y’s share of that profit from the greedy Mr. X, they might have more time to devote to such nuances as immigration.

I also wonder if this legal benchmark will apply to other areas of the law; for instance, if the number of kidnappings (another federal concern) were to increase substantially, would the FBI’s proper response be to simply stop enforcing kidnapping laws?

Many of the other arguments used in the decision are just as specious. The Hines vs Davidowitz Supreme Court ruling from 1941 is cited, selectively, throughout Bolton’s decision. In Hines, the plaintiff challenged a Pennsylvania law that required, among other things, aliens to fill out special state registration forms, and submit to other requirements, in excess of what federal law mandated. Therefore the court decided that the PA law interfered with the federal law on the same subject.

This is not the case in the Arizona law, which merely upholds, and complements the federal law. In their decision on Hines, the Supreme Court said, “The question whether a state law is invalid as conflicting with Federal laws touching the same subject is not to be determined according to any rigid formula or rule, but depends upon whether, under the circumstances of the particular case, the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” It takes a very flexible legal imagination indeed to determine that a state law that says essentially “The Federal law applies here!” is in any way an obstacle to the accomplishment and execution of the objectives of Congress.

So if there is not so much a legal stance, why the government’s zeal to challenge Arizona? Certainly not because public opinion demands it. Part of it is strict philosophy – big government statists such as Obama et al cringe at the notion of a mere State chiseling away at their ever expanding cache of power.

They may also be doing it simply to show they can. Republicans should take heed of this – even if they do not blow it this November, and gain back majorities in one or both houses of Congress, they still must deal with an administration with an ability, and desire, to rule not by logic and law, but by whim. The obstacle to the execution of the objectives of Congress? That would be the Attorney General’s office.


This article first appeared in the Grand Junction Free Press

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