John R. Houk
© July 31, 2010
Inside Passage a frequent commenter on my VOX blog may be described as a Center-Left Independent. In my train of thought that means he supports some Leftist concepts and supports some elements of the Slanted Right in a mixed bag that bugs both the entrenched Left and the entrenched Right (which would be me).
Inside Passage was totally with the Obama Administration’s efforts to use the Judiciary to hamstring Arizona State Immigration enforcement of it SB 1070. Inside Passage believes Arizona overstepped her Sovereignty by meddling in affairs that should be sacrosanct to the U.S. Congress as vested power granted by the U.S. Constitution. You probably imagine I did not share his view.
To view all the comments between me and Inside Passage go to my VOX post HERE.
This particular post is in response to this comment by Inside Passage:
We're not in disagreement here as far as the government goes. They are failing to do their job, and failing dramatically. I totally understand that. Our job is to force them to do theirs, not to break the constitution into little bitty pieces as the means to the end by doing their job for them.
Understand that this is exactly what SB1070 is. The states have no right to put "teeth" into any LEGISLATIVE powers, just as the government has no right to overstep into state rights. I'm going to pull a constitutional quote here, because it's pure relevance:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Note the word "vested". That means fixed or absolute, without contingency. That may sound dictatorial in nature to you, but it is intentional to preserve the balance of powers. Each of the three branches is vested with specific powers that no other branch may infringe upon. That means that no, the states are absolutely NOT allowed to tinker with Congressional powers. The constitution gets very explicit about it to make sure that people understand that the lines exist. It's the preservation of states rights in the 10th amendment that convinced states to join the Union in the first place, knowing that they would not be allowed to keep their own armies, declare war or render treaties or any of those other wonderful congressional powers. Or establish supreme law, such as the judicial branch has. Or ... so on. You get that right? That states can't just add 'teeth' to any governmental power they like to claim a power they're not supposed to have?
Kobach knows that perfectly well, but being a lawyer and being teamed up with a power-grabber like Pearce, they have no reason to care.
I agree, the federal government makes a regular habit of stepping on state sovereignty and rights to an unconstitutional degree, but that doesn't justify the same behavior by the states. This is the constitution they're breaking here. They need to stop it. right. now.
As far as Scott Brown goes, I referenced him because he supposedly represents the face of change. Yeah, he's the face of change alright, that's why his name is all over the T.E.A (stripping Americans of citizenship without due process), the so-called Kill Switch Cyberspace Bill, and just recently on Charles Rangel's HR 5741 which allows the government to force citizens between 18 and 42 to be forced into presidential service. Yeah, that's awesome, Scott Brown's not just a RINO, he's an AINO - American in name only, selling out his country to that little clique that strangely includes democrats and republicans both.
Just think, if McCain had been elected, you would be dealing with the exact same crap right now, because his name is on at least two of the same bills, as well as political waste like Lieberman and Rangel.
I am focusing my response solely on the Constitutionality of Judge Susan Bolton’s ruling removing the teeth from Arizona SB 1070.
Inside Passage you quote Article 1 Section 1 of the US Constitution:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
There are 10 Sections in Article One. So would it be logical to read all Ten Sections to reference “All legislative powers herein granted shall be vested in a Congress of the United States”?
It seems to me that Sections Two through Ten deal with the selection process and terms of the Senate and the House of Representatives. Specifically Section Eight relates the powers of Congress to make Laws that Sovereign States cannot:
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Section Ten enlightens the individual Sovereign States the laws they specifically CANNOT pass in State Legislatures:
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
I have to be honest with you Inside Passage; I do not see any vested powers enumerated in Article One that prevents the Sovereignty of the State of Arizona from enacting a law that does not contradict any Federal Laws vested in Congress. Indeed, the Tenth Amendment which amends any part of the original Constitution or clarifies ambiguities that may exist in the U.S. Constitution (which includes Article One), elaborates that laws not vested in Congress or Constitutionally in the Federal government is open to State Sovereignty to legislate:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Adding teeth to the enforcement of Federal Law enacted by the U.S. Congress does not contradict the rule of law; therefore the State of Arizona’s Immigration Law SB 1070 is not prohibited by the Constitution. Further more if a non-contradictory Law it means the rule of law is the same; ergo adding teeth to enforcement is not prohibited yet indeed the teeth thus reserved for the State of Arizona to enact a law supportive of the Congressional Law.
In relation to this the Federal Judiciary is only Constitutionally able to rule if Arizona’s Immigration Law is prohibited by the Congress. If the Federal Law does not prohibit a Sovereign State from adding teeth to a standing Law, Court cannot strike down the State Law. Rather the Court should have directed the plaintiff with is the Federal government under the management of the Executive Branch to refer back to the U.S. Congress. The U.S. Congress then in turn with the power vested in it by Article One could indeed prevent Arizona’s Immigration Law from becoming the rule of law in Arizona. The Executive Branch is limited in what it requires of Sovereign States of the Union by the power vested in the U.S. Constitution first and the power vested in Congress. Forcing action by Executive fiat that is outside of the U.S. Constitution or passed by Congress comes in the realm of the Judiciary to rule according to the Constitution. Again Judicial ruling is to the merit of Constitutionality and not to form policy which is derived from the U.S. Constitution first and the laws passed by the power vested in Congress. Execution of policy is in the prevue of the Executive Branch. And Policy is made by the Executive Branch as interpreted by the law of the land vested in the power of Congress.
So for clarity sake my position is that the Judiciary was operating extra-Constitutionally in making a ruling in accordance to the ability or inability of the Federal government to manage a policy burden that might be created by the State of Arizona bringing more illegal aliens for the Federal government to process in deportation or breaking laws. A Federal policy ability ruling was ridiculous! The Obama Administration should have shown its distaste for the Arizona Immigration Law by going to Congress to ask for more money to comply with the extra influx illegal aliens or to ask Congress to pass a new law according to the power vested in it by the U.S. Constitution to limit or extricate Arizona’s Illegal Alien enforcement.
We both know such a move by President Obama would be the political death sentence on election day 2010 and probably election day 2010. So what path did President pursue? He tapped a Left Wing activist Judge which has discarded the Constitution by Judicial fiat through making policy rather than ruling on the issues of Constitutionality.
Inside Passage that is wrong!