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SENTRY JOURNAL » Uncategorized » Why federalism is failing us…see Arizona ruling

Why federalism is failing us…see Arizona ruling

In a 5-3 ruling the Supreme Court struck down three out of the four key provisions in Arizona’s immigration law.  Justice Kennedy delivered the opinion of the court and as I read the long-form explanation of the court’s opinion it became abundantly clear to me why federalism is failing us.  It’s failing us because the federal government believes it’s a national government that reigns supreme over all things.  It does not view states as sovereign entities that are part of a federation and the Arizona ruling confirmed that position. In order to understand where I am coming from one must know the difference between a national government and a federal government.

A National government is the highest level of governance with the government at the central level having direct control over the freedom of the people living in the states; though, all this is in good faith of both parties.  The national government is the government of the whole nation while a federal government is a government of the states that are independent and sovereign.

A Federal government gives far more autonomy to states that make up the federation than a union with a national government with states. In a federation, the federal government passes acts that operate states and not the people living in them.

When our founders crafted the constitution they designed it in a manner that created a federal government of a Constitutional Republic consisting of 13 states.  A partnership was established between the sovereign states and the federal government with each party having specific powers and responsibilities.  The federal government’s powers outlined in Article I, section 8 of the constitution were limited to 17 enumerated powers while the states’ powers were extensive and broad.  Both parties do share some responsibilities but overall the states carry most of the water in this partnership.  It was purposely set up this way to keep the government close to the people and the limit the reach of the federal government.  That’s basically how federalism is supposed to work.  The founders never wanted to establish a national government because they feared a national government would usurp the authority and dismiss the sovereignty of the states’ leading to the loss of liberty and freedom. And yet yesterday our highest court in the land referred to our federal government as a national government three times in the court’s opinion.

In Justice Kennedy’s explanation of the ruling he stated the following.

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodríguez, Immigration 3 Cite as: 567 U. S. ____ (2012) and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. Const., Art. I, §8, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)).

He further went on to write, “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.

Again he referred to the government as a national government and not a federal government.  And finally he made one last reference about a national government in the following. “The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.

You can read the entire ruling here>>

Folks this is a Supreme Court Justice who refers to our form of government as a “National Government” three times in a major ruling against a state.  And with a national government whenever there is any confusion or a conflict in the law between the state and national government, the national government trumps state law.  This is where misapplication of the Supremacy Clause is taking us.  The Supremacy Clause was never meant to be as all encompassing as it has become.  In fact at New York’s ratifying convention Alexander Hamilton said, “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding

Basically if it’s not an enumerated power or it’s not within their scope of responsibility the law is not binding and therefore not supreme.  It’s funny how five Supreme Court Justices missed this.  I know how they missed this, because they believe we’re a “national” government and with a national government they and their opinions are supreme.  So much for federalism.  Be afraid…be very afraid.

Liberty forever, freedom for all!




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  • Steve Dennis June 26, 2012 at 4:59 AM

    A very interesting take John and a great catch on Kennedy using the term “national” instead of “federal” for there is quite a difference between the two. However, I thought the costitution did grant the feds the right to regulate immigration so I thought this was the right ruling. Am I wrong?
    Steve Dennis recently posted..The Supreme Court issues a split decision on Arizona’s immigration lawMy Profile

    • John Carey June 26, 2012 at 9:45 PM

      Thanks Steve. I’m not contesting that the federal government doesn’t have the authority to establish and enforce rules for naturalization. The point I was trying to make is that the federal government believes it’s a national government and seeks to change the nature of the relationship/partnership they have with the states. This in my opinion is another step in that direction. When reading Justice Scalia’s dissent not once did he refer to the federal government as a national government. He spoke of independent and sovereign states. Kennedy did not and that is my main concern. There is a trending mindset in Washington that our form of government is a national government and to use that terminology in a SCOTUS ruling is alarming.

      In my opinion this had less to do about an immigration law passed by a state and more to do with the relationship between states and the federal government. The truth is Arizona’s law was not on conflict or acting as an obstacle to the federal laws on the books. If anything it enhanced the government’s ability to enforce immigration laws. When you drill down into what Justice Kennedy said and you get past the immigration law, you see it for what it really is…a change in the relationship or partnership between the states and the federal government. At least that’s what I see Steve.
      John Carey recently posted..Why federalism is failing us…see Arizona rulingMy Profile

      • Steve Dennis June 27, 2012 at 5:04 AM

        That makes sense John and I failed to look at this beyond the issue at hand but you are right. This does strengthen the federal government and make it more dominant over the states while making the state more irrelevant, and this is something that has been happening for awhile. If we don’t reverse this trend soon it might be too late, if it isn’t already.
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  • […] good part of Justice Antonin Scalia’s dissent, and am convinced the ruling is incorrect. Read The Sentry Journal and Rjjrdq’s America to understand my reasoning. Please understand, I am no constitutional […]

  • LD Jackson June 26, 2012 at 6:46 AM

    At first, I agreed with the Supreme Court ruling, at least partially. However, the more I read the dissent opinion by Justice Antonin Scalia, the more I believe the justices really missed the mark. Couple that with the decision by the Obama administration to rescind their partnership with Arizona law enforcement, and the decision just doesn’t make constitutional sense.

    • John Carey June 26, 2012 at 9:52 PM

      This is about changing the relationship between the states and the federal government. It’s about fundamental transformation from a federal government to a national government. In this reality Larry the state loses more and more of their sovereignty as the national government becomes more supreme; the death of federalism soon follows. And they are using the supremacy clause as the vehicle to get them there. I’m with you, they really missed the mark on this one. The real question we should be asking is why 5 Justices believe that the government is a national government with supreme powers. Have they not read the Federalist papers or any source material derived from the ratification conventions?
      John Carey recently posted..Why federalism is failing us…see Arizona rulingMy Profile

  • Silverfiddle June 26, 2012 at 7:30 AM

    He cited the constitution and how it vested the federal government with immigration responsibilities, so besides using the word “national” I can’t find much fault with his words.

    Much more damnable to me is Heimatlandsicherheit kommisar Janet Napoleonitano’s decree that when Arizona law enforcement calls immigration, they won’t answer the phone.

    At what point can the states start suing the federal government for non-performance of constitutionally-mandated duties?
    Silverfiddle recently posted..Obama’s Immigration Decree: The Ugly DetailsMy Profile

    • John Carey June 26, 2012 at 10:17 PM

      I believe using the terminology “National Government” is a very big deal coming from a Supreme Court Justice. They do know the difference and if they don’t they shouldn’t be holding their seat. This is why I believe they’re sending us a message and the message is federalism is dead. As for Obama not fulfilling his constitutional duties to enforce the law and ordering the DHS not to answer the calls of Arizona law enforcement is simply deplorable.
      John Carey recently posted..Why federalism is failing us…see Arizona rulingMy Profile

  • Jim at Conservatives on Fire June 26, 2012 at 11:36 AM

    “A Federal government gives far more autonomy to states….”

    In our case it was the states that gave form and limited powers to the federal government.
    Jim at Conservatives on Fire recently posted..How Bad Would Euro Zone Collapse Be? Is The US Prepared?My Profile

    • John Carey June 26, 2012 at 10:22 PM

      Yes that’s the one thing we always need to remember. The states created the federal government not the other way around. The states have virtually unlimited constitutional authority while the federal government’s authority is limited. Why is this such a hard concept the grasp.
      John Carey recently posted..Why federalism is failing us…see Arizona rulingMy Profile

  • Bunkerville June 26, 2012 at 4:39 PM

    One big conservative setback as far as I read it. Jan is left out there spinning in the wind as well as her fellow Arizonians.
    Bunkerville recently posted..Rino Romney mute on AZ decision, Mark Levin has lots to sayMy Profile

  • Teresa Rice June 28, 2012 at 8:30 PM

    States rights just got dealt a huge defeat. Good job on catching the use of the word “national government” instead of federal government John. Unfortunately these progressive justices are remaking the constitution in their image. And this tells Arizona and Jan Brewer your on your own and have no right to do a dang thing about illegal immigration even though this administration refuses to enforce the laws already on the books.
    Teresa Rice recently posted..With the Supreme Court Decisions This Week is the Shining City upon a Hill Fading?My Profile

    • John Carey June 30, 2012 at 6:10 PM

      This is why we must stay engaged and why we must turn this around Teresa. We the people are the last line of defense against this progressive cancer.