Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Sunday, February 5, 2017

Trump's Ban

                The topic of discussion for this Constitution Monday is the same subject that has inundated the news feeds. Does President Trump have the authority to issue a ban to people coming from nations that are havens for ISIS and other terrorists? Is the President of the United States responsible to keep Americans safe from enemies foreign and domestic?

                Judge James L. Robart, a Seattle federal district court judge, issued a temporary restraining order against the ban. Trump asked his Department of Justice to request an emergency stay on the restraining order, but the 9th Circuit Court of Appeals denied the request.

                Geoffrey P. Hunt at American Thinker  reminds his readers that it was the 9th Circuit that affirmed a lower court ruling in 2011 in Arizona v. United States. Arizona made some statutes that were intended to decrease or stop illegal immigration into the state. The Obama DOJ sued Arizona “for usurping the federal supremacy in immigration.” Arizona lost. The Supremacy Clause states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article VI)

                The Heritage Guide to the Constitution explains why the Founders chose to write the Constitution as they did and why the Constitution is “the supreme Law of the Land.” 

Any federal system needs a strategy for dealing with potential conflicts between the national and local governments. There are at least three strategies available. First, each government could be given exclusive jurisdiction over its respective sphere, which would, at least in theory, avoid altogether the possibility of direct conflict. Second, the governments could have concurrent jurisdiction, but one government could be given power to veto actions of the other, either in the event of actual conflict or in general classes of cases. Third, both governments could be allowed to act without mutual interference, but one government’s acts could be given primacy over the other’s acts in the event of actual conflict.

The Supremacy Clause embodies the third strategy. It is a conflict-of-laws rule specifying that certain national acts take priority over any state acts that conflict with national law. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles of Confederation, which provided that “[e]very state shall abide by the determinations of the united states in congress assembled on all questions which by this confederation are submitted to them.”    

Federal statutes and other federal laws are, of course, “supreme” only if made in pursuance of the Constitution, and Chief Justice John Marshall used this language in Marbury v. Madison (1803) to support his argument that the Constitution contemplates judicial review. Thus, the Supremacy Clause does not grant power to any federal actor, such as Congress. It deals with resolving a conflict between the federal and state governments once federal power has been validly exercised. It is a straightforward interpretative rule that is addressed to all legal interpreters, including Members of Congress, federal executive officials, federal judges, state-court judges, or other state officials. It does not preclude other strategies for dealing with potential national and state conflict, nor does it allocate power between the national and state governments. Other parts of the Constitution do that… The Convention repeatedly rejected all such proposals for a federal veto power over state laws. The objective of the Framers throughout was to devise strategies that would reduce occasions for national and state conflict.

                Hunt’s article states that the U.S. Supreme Court in the Arizona case in June 2012 reinforced the “supremacy of the federal government – both Congress and the president – over the states in immigration and national security. I believe the Trump ban is constitutional, but I do not know what ruling will come down from the various liberal judges. Even going to the Supreme Court is not something to bet on because the Court would probably split 4-4 and leave the 9th Circuit Court ruling in place.

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