Sovereignty And Preemption

In a recent post, I linked to an essay by Heather Mac Donald in which she wondered whether the DOJ’s assumption of “preemption” might apply to Arizona’s enforcement of immigration law, and not just its creation of law (the law in question being, of course, the controversial S.B. 1070). In other words, Ms. Mac Donald thought that the Obama administration might fairly be able to claim that it can reserve the right of immigration enforcement (or, in this case, ideologically and politically motivated non-enforcement) to itself alone.

Now Ms. MacDonald’s interlocutor in this discussion, the author, columnist, and former federal prosecutor Andy McCarthy, has responded with an in-depth reply, in which he argues that it cannot. We read:

The nation is built on a political power-sharing arrangement in which the states maintained their sovereignty while surrendering certain powers to the national government. Two important things flow from this.

First, the states are sovereign. That is not just a slogan, it is a concept that has real meaning. Inherent in sovereignty is the natural right of self-defense. If states are no longer at liberty to protect their territories and defend their citizens, they are no longer sovereign, and the social compact on which the nation is based is broken.

Second, the presumption in our system is against the forfeiture of rights and powers. The Constitution expressly provides that unless a power has been delegated to the federal government, it is retained by the states. Our law holds that individuals are not deemed to forfeit their fundamental rights unless there has been a waiver that is clear, knowing, and voluntary. I don’t see why sovereign states would rate any less deference. This is critical because (a) the Constitution does not delegate the power of immigration enforcement to the national government (the power to set terms for naturalization, which is federal, is not a power over immigration enforcement), (b) the power to regulate immigration was understood to be retained by the states, as a core part of their police power, for the first century-plus of our nation’s history, and (c) the states have continued to exercise this power and have never forfeited it. In point of fact, until the turn of the 19th century, the pertinent question was whether the national government had any power over immigration enforcement (Jefferson, for example, was quite certain it did not). It was federal power that was dubious; state power was unquestioned. See, e.g., Joseph Baldacchino, “Regulation of Immigration Historically a State Function” (National Humanities Institute, July 19, 2010).

To me, this is the necessary context for any consideration of a federal attempt to prohibit the exercise of state police power within a state’s sovereign territory. Such a prohibition should not happen unless there is a clear constitutional mandate — i.e., an unambiguous indication that the states delegated the power in question to the federal government or that the state’s exercise of the power interferes with some federal right clearly protected by the Constitution. This is what the Supremacy Clause stands for.

This is a fascinating discussion. Read Mr. McCarthy’s essay here.

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