Motus Mentis

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.

In an essay that is sure to have critics across the aisle whetting their ad hominem knives, Arthur Laffer explains why soak-the-rich tax increases are a bad idea.

Here.

According to a recent release from Gallup:

PRINCETON, NJ — Gallup’s 2010 Confidence in Institutions poll finds Congress ranking dead last out of the 16 institutions rated this year. Eleven percent of Americans say they have “a great deal” or “quite a lot” of confidence in Congress, down from 17% in 2009 and a percentage point lower than the previous low for Congress, recorded in 2008.

Hmmm… military, #1; small business, #2; Congress, last.

Is it November yet?

On September 6th, 1824, at Monticello, the eighty-one-year-old Thomas Jefferson wrote in a letter to one William Ludlow (my emphasis):

…I have observed this march of civilization advancing from the sea coast, passing over us like a cloud of light, increasing our knowledge and improving our condition, insomuch as that we are at this time more advanced in civilization here than the seaports were when [I] was a boy. And where this progress will stop no one can say. Barbarism has, in the meantime, been receding before the steady step of amelioration; and will in time, I trust, disappear from the earth. You seem to think that this advance has brought on too complicated a state of society, and that we should gain in happiness by treading back our steps a little way. I think, myself, that we have more machinery of government than is necessary, too many parasites living on the labor of the industrious. I believe it might be much simplified to the relief of those who maintain it.

Meanwhile, in a recent Times editorial, academics George Lowenstein and Peter Ubel issue a call for the “machinery of government” to be expanded and adjusted to grind a little smaller — because even when properly informed, the citizenry, in an intolerable demonstration of willful insubordination, obstinately refuse to act as their betters have determined they ought.

We read:

Take, for example, our nation’s obesity epidemic. The fashionable response, based on the belief that better information can lead to better behavior, is to influence consumers through things like calorie labeling ”” for instance, there’s a mandate in the health care reform act requiring restaurant chains to post the number of calories in their dishes.

Calorie labeling is a good thing; dieters should know more about the foods they are eating. But studies of New York City’s attempt at calorie posting have found that it has had little impact on dieters’ choices.

Obesity isn’t a result of a lack of information; instead, economists argue that rising levels of obesity can be traced to falling food prices, especially for unhealthy processed foods.

To combat the epidemic effectively, then, we need to change the relative price of healthful and unhealthful food ”” for example, we need to stop subsidizing corn, thereby raising the price of high fructose corn syrup used in sodas, and we also need to consider taxes on unhealthful foods. But because we lack the political will to change the price of junk food, we focus on consumer behavior.

Yes, it’s shameful: allowing free men and women to make their own free choices in a free market, rather than simply instituting new laws and levies to make them do what professors Lowenstein and Ubel know is best for them. What’s the matter with us, anyway?

Well, don’t worry, we now have a new man in charge. Story here.

Wait — what’s that you say, Tom?

“The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite.”

Oh, you needn’t bother about that any longer. All settled, thanks.

The DOJ has now uncorked its long-threatened lawsuit against Arizona for the latter’s audacity in attempting to enforce Federal law to stem the disastrous tide of undocumented Democrats streaming into the state from across the border.

Blogger Ann Althouse examines the suit’s premises here. Her commenter “Mesquito” crisply summed up the seething frustration of a growing number of Americans with the Obama administration’s priorities, as quoted below (edited for typos):

Let me be clear:

A city may defy our immigration laws by declaring itself a “sanctuary” and the Obama Justice Department does nothing. An armed, uniformed member of a fascist, racist organization can position himself at a polling place on election day, and the Obama Justice Department drops the charges.

But a State legislates in harmony with federal law, and it is sued?

Seriously. I want my country back.

You aren’t the only one, amigo.

Meanwhile, another commenter points out that the Federal government is required under Article IV, Section 4, to defend the states against “invasion”. Surely this qualifies, no?

It seems encouragingly likely that the administration is preparing for itself a formidable legal and political petard, with substantial hoisting power. We shall see.