Do Texas and Louisiana Have Standing to Sue on Border Issues?

The liberty principle for this Freedom Friday is the need for sovereign nations to protect their borders. Hans von Spakovsky and Charles “Cully” Stimson published an article at The Daily Signal about a case now at the Supreme Court. Texas and Louisiana sued the Biden administration for its “guidelines that severely restricted the Department of Homeland Security’s enforcement of federal immigration law against illegal aliens.” This case was supported by amicus briefs from twenty other states. 

Oral arguments in the case were heard by the Supreme Court this week because the Biden administration appealed a September 30, 2021, ruling by a federal district court judge. Von Spakovsky and Stimson reported the following:

According to the administration, the misnamed “enforcement” efforts of the Department of Homeland Security are to be “guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years” and the fact that they are here illegally “should not alone be the basis of an enforcement action against them.” …

Texas and Louisiana claimed this type of individualized review and discretionary decision-making violated federal law, specifically 8 U.S.C. §§ 1226(c) and 1231 (a)(2), which mandate that the executive branch “shall take into custody” or deport aliens convicted of specific types of crimes or who have final orders of removal issued against them by immigration judges. Shall means shall (ie., must), Texas argued in the lower court.

The district judge agreed, saying that the Biden administration offered an “implausible construction of a federal law that flies in the face of the limitations imposed by Congress” and that it was invoking “discretion and prioritization in an effort to evade meaningful judicial review.”

The justices heard oral arguments for two and a half hours on Tuesday, and they questioned the lawyers on the above issues as well as “whether the states even had standing to bring a lawsuit in the first place.” No one knows how the justices will rule on this case, but they made some interesting statements.

The solicitor general of the U.S., Elizabeth Prelogar, for example, argued that the states had no standing to sue the federal government, no matter how much they are damaged by the policy implemented by the Biden administration.

She also argued that the word “shall” in the immigration statutes – as in the federal government “shall” detain aliens convicted of particular crimes – does not actually mean “shall,” and the Biden administration instead has the “discretion” to decide which aliens it will detain. In essence, she argued that the administration has the “discretion” to decide whether to comply with the law….

Chief Justice John Roberts sharply questioned Prelogar about her claim that states never have standing to “challenge immigration policies concerning apprehension or removal of aliens.” Roberts himself pointed out that the solicitor general’s claim conflicted with the Supreme Court’s decision at the end of last term in Biden v. Texas over the Biden’s administration’s cancellation of the “Remain in Mexico” policy implemented by the Trump administration.

The chief justice said he thought she would “have a little more concern about an opinion of ours that’s 4 months old” and chided her, saying, “It’s not even out of the cradle yet and you’re throwing it under the bus.”

Other justices asked questions of Prelogar. Justice Samuel Alito questioned the government’s argument about standing – giving standing to individuals but not states. Justice Brett Kavanaugh asked Prelogar if she was saying that a new administration could refuse to enforce any federal labor or environmental laws and deny standing to the states to sue. “Prelogar said that was exactly the position the Biden administration was taking.” This statement is amazing, but it is not the only amazing statement made by the government.

 

States' Rights - Not

                    The liberty principle for this Freedom Friday is the fact that the Tenth Amendment grants "powers" to States and the Constitution preserves the "rights" of the people.  Conservatives need to stop crying for "States' rights" and talk instead about the powers delegated to States and the sovereignty of the States.

                    The Tenth Amendment to the United States Constitution declares:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

                    In an essay by The Heritage Foundation about the Tenth Amendment, we read, "The Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution:  the national government possesses only those powers delegated to it.  The Framers of the Tenth Amendment had two purposes in mind when they drafted it.  The first was a necessary rule of construction.  The second was to reaffirm the nature of the federal system….

                    "On the other hand, the Tenth Amendment may itself pose a substantive limit on assumedly granted powers.  Even if modern developments permit (or require) expansion of congressional authority well beyond its eighteenth-century limits, such expansion cannot extinguish the `retained' role of the states as limited but independent sovereigns.  The Tenth Amendment thus may function as a sort of `fail-safe' mechanism:  Congress has broad power to regulate, and even to subject states to generally applicable federal laws, but the power ends when it reaches too far into the retained dominion of state autonomy." 

                    It is an obvious statement that must be made:  No government - federal, state, or local - are granted rights in either the Declaration of Independence or the Constitution.  The Federal Government and the States were granted powers, and the rights of the people were recognized and preserved. 

                    James Madison, often called the Father of the Constitution explained in The Federalist No. 45:  "The powers delegated by the proposed Constitution to the Federal Government are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce; … The power reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state."

                    The Heritage Foundation argues that conservatives should cease their cries for "states' rights."  "Not only is it incorrect to speak of states' rights, but the expression was the rallying cry of segregationists.  Since no right-thinking conservative abides such arguments, let's just drop the term `states' rights' once and for all.

                    "If you're concerned about federal encroachments on state sovereignty or the erosion of federalism - as you should be - then speak of federal encroachments on state sovereignty or the erosion of federalism.  Or, of the need to restore limited constitutional gove3rnment, reinvigorate local self-government, decentralize power, and check the growth of out-of-control government.  With so many great formulations to choose from, why weaken the case for liberty by relying on `states' rights'?"   

No State Letters of Marque and Reprisal

                    The topic of discussion for this Constitution Monday comes from Article I, Section 10, Clause 1:  "No State shall … grant Letters of Marque and Reprisal…."  There was an obvious reason why this provision and other provisions in Clause 1 were included in the U.S. Constitution; it included in order that the States would understand that this authority rested with the federal government.

                    "The word marque is a seal associated with letters of authorization from a sovereign nation to one of its private citizens to seize or destroy (commit reprisal against) the ships or other resources of an enemy.

                    "Such a letter would be dangerous if issued by a single state, since it could involve all of the other states in a conflict with some foreign nation…" (W. Cleon Skousen, The Making of America - The Substance and Meaning of the Constitution, pp. 492-493).

                    "Many of the federal government's enumerated powers relate to foreign affairs and have corresponding restrictions on states in Article I, Section 10.  Article VI of the Articles of Confederation had permitted the states … to grant letters of marque and reprisal after Congress had declared war…" (Brannon P. Denning, The Heritage Guide to the Constitution, p. 168).

No State Treaties, Alliances, and/or Confederations

                    The topic of discussion for this Constitution Monday comes from Article I, Section 10, Clause 1:  "No State shall enter into any Treaty, Alliance, or Confederation…."  Section 8 of the U.S. Constitution specifically granted to Congress the power and authority to make treaties, alliances, and/or confederations; therefore, this provision merely reminds the States that the federal government has the right and the responsibility to handle these specific duties. 

                    "All of the powers denied to the states in this section are those which are specifically granted to the national government in section 8.  The states had exercised these powers under the Articles of Confederation and had nearly wrecked the government.  That is why the Founders took this extra precaution to spell out these powers as belonging to the national government after the adoption of the federal charter" (W. Cleon Skousen, The Making of America - The Substance and Meaning of the Constitution, p. 492).

                    The Articles of Confederation (Article VI) allowed the states to make treaties with foreign governments as long as Congress approved.  "In addition to granting the government powers to regulate trade and raise revenue that it either lacked or could not enforce under the Articles of Confederation, the Framers intended the Constitution to centralize much, if not all, power over foreign affairs.  Many of the federal government's enumerated powers relate to foreign affairs and have corresponding restrictions on states in Article I, Section 10….

                    "Treaties, as well as alliances and confederations, are formal, binding agreements between nations that are the subjects of international law…." (Brannon P. Denning, The Heritage Guide to the Constitution, pp. 167-168).

                    The Founders wrote the Constitution in such a way as to allow for a strong, central government to handle national affairs while at the same time allowing States to handle local affairs.  They obviously could see that big problems could come from having both States and the central government entering into treaties, etc. with foreign governments.

People Power

The liberty principle for this Freedom Friday is that the people retain all powers not specifically defined and delegated to the government. The Founders of our unique and great nation feared that a federal government would grow so powerful that it would crowd out the rights that legally and morally belonged to the people and/or the states. They spent much time and effort to carefully define the powers delegated to the government. They wanted to limit the authority of the government by the use of legal chains written into the Constitution.

W. Cleon Skousen wrote, "It will be recalled that one of the reasons many of the states would not adopt the original draft of the Constitution was that they feared the encroachments of the federal government on the rights of the states and the people. The first ten amendments were therefore added to include the ancient, unalienable rights of Anglo-Saxon freemen so there could be no question as to the strictly limited authority the people were conferring on their central government."

After writing the first eight Amendments to the Constitution, the Founders added two more that specifically limited the power of the government. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth Amendment makes their meaning even clearer: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Our Founders were familiar with governments in the past that were corrupt and abusive. By limiting the power of the federal government and dividing the powers between the states and the central government, the Founders hoped to provide more security for the people.

Alexander Hamilton explained, "This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from over-passing their constitutional limits, by certain rivalship which will ever subsist between them."

As the Constitution was originally written, states could protect themselves from legislation taking their rights. The Founders wrote that the two Senators from each state were to be selected by the legislature of that particular state. Because the Senate could veto any legislation by the House of Representatives, the Senators were able to protect the rights of their states. When the Seventeenth Amendment in 1931 changed the election of Senators to a popular vote, the States lost their representatives and therefore some of their protection.

The illegal immigration problem in Arizona is just one example of how the federal government is trying to crush the state's right to protect its citizens. It may be time for the people of the United States to force a repeal of the Seventeenth Amendment. I believe that the rights of the states and thus the rights of the people would be better protected if Senators were chosen by the legislature of their particular state.

Ideas and quotes for this post came from The Five Thousand Year Leap by W. Cleon Skousen, pp 161-164.

Amendments

As one year ends and another year starts, I am more aware than ever that some changes need to be made. Our Founders wrote the United States Constitution in such a way that it could best safeguard our liberty. They tried to foresee every problem that might arise and wrote a solution to the problem in the Constitution. Then they realized that they couldn’t foresee every change that would be needed; therefore, they wrote into the document the very way that changes could be made.

Article V gives the process of amending the Constitution: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Our federal government is far removed from the language and intent of the Constitution. We are in the midst of a Constitutional crisis. We may need to pass some amendments to our Constitution in order to bring our federal government back under the control of the people and to keep our government from going bankrupt. There is no problem with the Constitution but in the interpretation of what it says. We are in this situation because progressives have evolved the interpretation to be a “living” Constitution that requires our government to provide social services never expected by our Founders.

Ideas for several different amendments are floating around in the circles of patriots who want to take our country back from the progressives who are trying to turn it into a socialist nation. Here are a few of the ideas.

Pass a balanced-budget amendment. Congress does not seem to have the knowledge or ability to keep expenses within the income of our nation. Thomas Jefferson must have foreseen a problem like we are experiencing: “I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government to the genuine principles of its constitution; I mean an article taking from the Federal government the power of borrowing.”

James Buchanan, a Nobel Prize-winning economist, said that there is a structural flaw in our fiscal politics that requires a structural correction – something that will change the way the game of politics is played: “Politicians prior to World War II would have considered it to be immoral (to be a sin) to spend more than they were willing to generate in tax revenues, except during periods of extreme and temporary emergency… There were basic moral constraints in place; there was no need for an explicit fiscal rule in the written constitution.” Now the moral restraints are gone, and an Amendment to the Constitution is probably needed.

Pass a term limits amendment. When the Constitution was written, the Founders were of the idea that public service was to be service to the public – not being served by the public. Gentlemen served in public positions for a few years but never made it a lifetime career. None of the early politicians were getting rich off serving the public, and so they needed to return to their former occupations. Now we have career politicians who wear expensive clothes, live in expensive homes, take expensive trips – and fail to even read the bills they are voting for. It appears that more of our career politicians are in public service for the salaries and benefits than for patriotic reasons. The Constitution was amended to keep the President from becoming a lifetime President; it appears that the Constitution needs to be amended to keep Senators and Representatives from “feeding at the public trough” for their entire lives. I believe that Senators should be limited to two terms or twelve years and Representatives should be limited to three terms or six years.

Senator Jim DeMint of South Carolina proposed such an amendment in November 2009. His bill currently has three sponsors: Senators Brownback, Coburn and Hutchinson. Senator DeMint sees the problem clearly: “As long as members have the chance to spend their lives in Washington, their interests will always skew toward spending taxpayer dollars to buy off special interests, covering over corruption in the bureaucracy, fund-raising, relationship building among lobbyists, and trading favors for pork – in short, amassing their own power.”

Since many politicians use an office as a stepping-stone into lobbying the government, we should also make the amendment state that politicians cannot become lobbyists until at least four years after they leave office. Also, the amendment should state that family members of anyone in Congress cannot be lobbyists.

Pass a line-item veto amendment. Congress loves to add their favorite projects to legislation that has wide support. If the President had the ability to carve fat out of any bill, then we could lessen the chances of Congressmen adding pork. This amendment might give a President more power than we would like him to have, but not giving him this power has brought serious problems.

Pass an amendment to make all laws applicable to everyone. Suggested wording for this amendment is: “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.” I believe that the best place to make this applicable is in equalizing the pay between our representatives in Congress and the men and women who serve in the military. Why should the people who are spending our nation into bankruptcy make eight to ten times more money than the men and women who are putting their lives on the line every day to serve and protect our nation?

Pass an immigration amendment that clearly states, “No baby born to parents illegally in the United States shall be given birthright citizenship.” An amendment such as this should lessen the flow of traffic over the border.

This list contains a lot of amendments that we need, but few of these amendments will be passed. Why? Congress is the organization that we need to control, but Congress is also the organization responsible for amending the Constitution. Any amendment to our Constitution will need to come from the people to the state legislatures. Our Constitution clearly states that the state legislatures can begin the amendment process: “… or, on the Application of the Legislatures of two thirds of the several States…”

Local Governments

The liberty principle for this Freedom Friday is that the foundation for protecting individual freedoms is strong local self-government. All individuals have a circle of influence, and the strongest influence is from the people we know best. Thus, we are apt to know better the people who live in our own towns, cities, and states than someone across the nation. We can keep our local governments strong by electing people whom we know to have strong moral values. W. Cleon Skousen wrote, "Political power automatically gravitates toward the center, and the purpose of the Constitution is to prevent that from happening. The centralization of political power always destroys liberty by removing the decision-making function from the people on the local level and transferring it to the officers of the central government. This process gradually benumbs the spirit of `voluntarism' among the people, and they lose the will to solve their own problems. They also cease to be involved in community affairs. They seek the anonymity of oblivion in the seething crowds of the city and often degenerate into faceless automatons who have neither a voice nor a vote." Self-government works because problems are best solved at the level where they originate. Problems in a family are best solved by members of a family working together. If a problem originates on a neighborhood level, neighbors working together can best solve the problem. If there are problems in education, the solution should come from a source close to the students. This principle also applies to states. The Constitution gave the federal government the responsibilities that the states could not handle as well - such as defense. It also kept for the states the responsibilities best done locally such as education and police departments. The Founders understood the need to protect the freedom of the individuals as well as to encourage strong local self-government. Thomas Jefferson explained, "The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to [perform best]. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward [township] direct the interests within itself. It is by dividing and subdividing these republics, from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or the aristocrats of a Venetian senate." (Bergh, Writings of Thomas Jefferson, 14:421.) The Founders wanted the federal government to remain small in order that the power would remain with the people. Strong local self-government is the process through which freedom is preserved for individuals. Ideas and quotes for this post are from The Five Thousand Year Leap by W. Cleon Skousen, pp 169-172.