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!