Soveriegnty and “Papers, please”

Arizona’s “Papers Please” Bill (SB 1070)

Conservative Myth 1: SB 1070 simply follows or recapitulates existing federal law/policy

Fact: It differs in many respects (from FactCheck.org):

• Section 2B of the new law requires local law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have “reasonable suspicion” the person might be an unauthorized immigrant. This implies additional detention time, in some cases for legal residents and citizens, not required by federal law.
• Section 2H allows any citizen to sue an official or agency in the state who “adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted [not required] by federal law”. In addition to imposing enforcement requirements on local jurisdictions not required under federal law, this makes the minimum enforcement requirements of the Arizona law equal to the maximum possible enforcement under federal law.
• These sections impose new burdens, legal liabilities, and unfunded mandates on local jurisdictions. Some Arizona police chiefs and other state officials oppose the law, in no small part because of the provision allowing citizens to sue them. Phoenix Police Chief Jack Harris suggested it’s at best superfluous in terms of helping local law enforcement combat serious crime. He and some other Arizona chiefs say the statute could actually hurt their efforts to fight serious crime because they will have to devote time and resources to enforcing the immigration provisions. The law also will make illegal immigrants who are crime victims or witnesses more leery of cooperating with law enforcement, they predicted.
• Under federal law, violations of immigration statutes by someone in the U.S. illegally may in some cases be punished with a jail sentence but are often penalized by deporting the individual instead. Arizona, lacking the authority to deport anyone, will enforce jail sentences laid out in its new law for, say, failing to carry one’s immigration authorization documents.
• The Arizona law prohibits state or local officials from prosecuting illegal immigration “to less than the full extent permitted by federal law.” As Chin and three other Arizona law professors wrote in a recent report: “Since federal law permits race to be a ‘relevant factor’ in determining reasonable suspicion for stops and inquiries, the combined effect of these provisions may be to require state actors to use race to the full extent permitted by federal law.”
• Because the exact SB 1070 language is different from federal language in so many places, (see New Arizona immigration law and ID demands ) a multitude of technical ambiguities are created that may tie up courts for decades.
• Immigration – like foreign policy – always has been the purview of the federal government. The feds’ authority is rooted in Article I, section 8 of the U.S. Constitution. Kevin Johnson, an immigration law expert and dean of the University of California at Davis School of Law… believes that legal challenges to the law – several have already been filed, and the Obama administration is also considering a lawsuit – are likely to succeed under the federal preemption doctrine, which is based on the Constitution’s Article VI, clause 2…known as the supremacy clause…

Conservative Myth 2: Arizona SB 1070 is justified due to a failure of federal law enforcement.

Fact: Phoenix Police Chief Jack Harris:

“Proponents of this legislation have repeatedly said that the new law provides a tool for local law enforcement, but I don’t really believe that that’s true or accurate. We have the tools that we need to enforce laws in this state to reduce property crime and to reduce violent crime, to go after criminals that are responsible for human smuggling, to go after criminals that are responsible for those home invasions, kidnappings, robberies, murders.”

In addition, The Obama Administration has been stronger on immigration enforcement than the Bush administration. From CommonDreams.org:

“As the chart shows, the Obama administration is on track to deport a record 400,000 people in 2010, 70% of whom are non-criminal undocumented immigrants who have been caught up in an aggressive dragnet of local, state and federal raids and enforcement actions.  As shocking as these numbers are, they are proof that Republican calls for increased immigration enforcement as a pretext to comprehensive immigration reform are just hollow political pot shots.”

Conservative Myth 3: The Jul 28  temporary injunction placed on sections of the AZ immigration measure by U.S. District Court Judge Susan Bolton is a blatant example of judicial activism and legislating from the bench.

Fact: A temporary injunction is not remotely equivalent to legislation. From maddowblog.msnbc.msn.com: The injunction applies only to the portions of the AZ law which Judge Bolton felt the federal government has a good chance to prove in its lawsuit against Arizona: requiring police to determine whether someone is in the country legally, requiring immigrants to carry their registration papers, warrantless arrests when police believe an immigrant has done something that would make them deportable, and state penalties for undocumented immigrants who seek or do paid work. These matters may exceed or conflict with federal enforcement.

Sovereignty and Legal Jurisdiction

Now–here’s where I agree with conservatives: State and local jurisdictions should be allowed to enforce federal law under appropriate terms and conditions.

But–here’s where I disagree with conservatives and SB 1070:

• State and local jurisdictions should only be forced to enforce federal law when that requirement is enacted and funded at the appropriate political level of each such jurisdiction. It is as odious for state government to force an unfunded mandate on a local jurisdiction as it is for the federal government to do so.
• No new, additional, or revised language or penalties should be added to or superimposed on the language and penalties of the federal statutes that will be locally enforced.
• Local enforcement of federal law must be consistent with and not create a hindrance to federal authority and enforcement. Local enforcement must submit to federal coordination and supervision. In other words, the feds still call the shots when there is a conflict.
• Citizens should have standing to sue local, state, and federal jurisdictions only when those jurisdictions violate their own statutes. A local police force or government can only be sued for failing to properly enforce its own statutes or such statutes of other jurisdictions that have been explicitly incorporated verbatim by reference into local laws in accordance with the previous terms and conditions above.
• Citizens should have standing to sue local, state, and federal jurisdictions only when such citizens have been personally harmed by the improper enforcement of laws by the responsible jurisdiction. (Exceptions may apply in the case of public corruption, damage/misuse of public property, and environmental law enforcement.)

And here’s where I disagree with inconsistencies in the dominant conservative positions regarding states rights and sovereignty:

• In the case of public corruption, damage/misuse of public property, and environmental law enforcement, all citizens and legal residents should have standing to sue any offending public agency or official.
• In the case of any violation of the US Constitution, all citizens and legal residents should have standing to sue the accused violator in the appropriate jurisdiction without regard to personal injury or any other requirement or test for legal “standing”.

Despite the excessive grant of legal standing to uninjured parties under SB 1070, conservatives generally tend to side with the corporate and political “powers that be” in most attempts to limit the legal standing of citizens to sue in the above instances.

In cases involving the public trust, public property, and the violations of the US Constitution, the sovereignty of the American people trumps that of any government jurisdiction. The author, principle party to, and guarantor of the US Constitution is neither the federal government nor the states. The Preamble of the US Constitution does not begin “We the federal executive, legislature, and judiciary…” nor does it begin “We the states…”. It begins “We the People“.

And the Constitution does not begin “We the People, in order to limit our powers and choices to the narrow boundaries defined herein…”. It begins

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Somehow, many conservatives construe the “general Welfare” and the “Blessings of Liberty” to exclude anything not specifically enumerated in the remainder of the Constitution and its amendments. Conservatives deliberately misconstrue the Tenth Amendment:

“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.”

“Or to the people” tends to get lost by most modern conservatives. “Or to the people” means that powers not specifically delegated to the people nor specifically prohibited by the Constitution or by the states remain vested in the people. But conservatives seem to believe that passing new laws to promote some aspect of the general welfare of the people applies only to laws that are somehow suggested by, hinted at, or prefigured in some way in the original text of the Constitution and its current amendments. We the People are somehow not allowed to pass laws that are novel or extraneous to the Constitution and the amendments.

Considering that “We the People” are the ultimate originators, establishers, ordainers, guarantors, and intended beneficiaries of the Constitution, that is a very curious conservative position. Conservatives seem to have no problem with the concept that “state’s rights” include and reserve sovereignty over all rights not enumerated or prohibited by the Constitution, but seem stubbornly opposed to applying the same simple logic to “We the People”.

“We the People”, as the ultimate establishers and sovereigns of this nation, as explicitly spelled out by the Preamble and the 10th Amendment, reserve to ourselves all rights and powers not explicitly delegated to the federal or state governments by the Constitution or by the subsequent acts of our state and federal legislatures which serve in our name, in our interests, and at our pleasure.

The Constitution does not exhaustively define or enumerate all the powers of We the People. It only places certain explicit (yet amendable) restrictions on the federal and state governments. All rights and powers, without limitation, up to and including abolishing the entire system and starting over, remain fully vested in We the People.

This is not even remotely controversial since either by individual amendment or Constitutional Convention we are expressly empowered add or remove anything we like. From time to time, as conditions and public sentiments change, we may enact further amendments or laws that limit our collective or individual freedoms in the public interest, or to promote the general welfare, or to increase, extend, or protect the blessings of liberty for all. And from time to time, as conditions change, we may repeal such laws for the same sorts of reasons.

Furthermore, except for the enumerated limitations of Congressional power (“Congress shall pass no law to…&etc.”), it is within the power of the people’s Congress to pass any legislation we damn well tell it to pass. Of course a law that Congress passes is a law that Congress may repeal. The effect of many of the amendments might have been accomplished by ordinary legislation, but such would be subject to reversal just as easily. Amendments are much more “sticky” than statutes.

Because the First Amendment expressly uses the formulation “Congress shall pass no law to…,” we can infer that if the Framers had meant to prohibit Congress from passing laws establishing Social Security, health care, unemployment insurance, environmental regulation, or whatever, they would have said so in similar terms.

I find the idea, that the enumerated powers were intended to be exhaustive, completely indefensible by any proper logical or linguistic interpretation. It is either a fanciful or a disingenuous conceit.

The somewhat schizophrenic United States Supreme Court agrees with me, sometimes:

The United States Supreme Court has interpreted the Commerce Clause and the Necessary and Proper Clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated powers nor expressly denied in the limitations on Congress. In McCulloch v. Maryland (1819), the United States Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had “[t]he foregoing powers and all other powers…” (Wikipedia: US_Constitution#Original_text)

The view expressed by Jefferson, that we would indeed review and revise the entire Constitution on a frequent basis, exorcises all the contorted doctrines advanced by various “libertarians,” “conservatives,”  “strict-constructionists,” “originalists,” corporatists, and others in conflict with the public interest and general welfafre.

That isn’t to say I agree with Jefferson about holding frequent, full-blown constitutional conventions. IMO the only doctrine that deserves to be called “conservative” is to voluntarily limit ourselves to one amendment at a time.

Separation Anxiety

Another thing that is perfectly clear from any sober reading of the US Constitution is that the peoples’ Legislative Branch was intended to be first among equals. The Constitution gives Congress the power to regulate the configuration and operation of the court. Congress has the power, for example, to set the number of justices on the court, to establish their necessary qualifications, manner of selection, terms of service, etc.

As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts.^[b] In 1891 Congress enacted a new system. District courts would have original jurisdiction. Intermediate appellate courts (circuit courts) with exclusive jurisdiction were made up of districts. These circuit courts heard regional appeals before consideration by the Supreme Court. (Wikipedia: US_Constitution#Judiciary)

How has the court been able to “infer” unenumerated powers for itself and unenumerated prohibitions for the other branches? Its a long story. There is a much shorter explanation for why: follow the money. That’s how the wealthy want it. They have, as a class, patiently pursued the corruption of all three branches of government in order to create the dominance of the court as a brake on the peoples Congress and the Executive bureaucracy. The oligarchs and plutocrats can exert much more leverage on nine people than on thousands of others dispersed throughout government.

At the base of the Courts assault on the other branches is the  “doctrine of judicial review.”

Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.

The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred [by the Court] from the structure, provisions, and history of the Constitution.^[1]

The Supreme Court’s landmark decision on the issue of judicial review was Marbury v. Madison (1803),^[2] in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional. Since that time, the federal courts have exercised the power of judicial review. Judicial review is now a well settled doctrine. (Wikipedia: Judicial_review_in_the_United_States)

Yes, the court’s self-inferred power of review has been settled for itself, by itself, upon itself, to the sole benefit of the  tiny, ultra-rich minority who find this made-up power of the court to be an effective means of serving their special interests.

But Article III enumerates various powers of the court “with such exceptions, and under such regulations as the Congress shall make.” The modern doctrine of judicial review might carry some tenuous power of persuasion except for the fact that Article III clearly gives Congress, the People’s branch, this supremacy. Certainly it is useful for the court to conduct judicial review in an advisory capacity, but what kind of legal or political thinker can, without ulterior motives, argue that nine unelected elites should hold higher authority in a modern society than the body of the people?

It is true that some powerful Framers, most notably Alexander Hamilton, supported the judicial review doctrine. They were the same wealthy, neo-artistocratic men who wanted the chief executive to have king-like powers and who wanted numerous other anti-democratic measures such as an appointed, aristocratic Senate, an Electoral College, a powerful Central Bank, etc., all intended to enhance and protect the privileges and power of a wealthy minority and to diminish the power and sovereignty of the the people.

The judicial review doctrine was so repugnant to popular public ideals and so hotly contested by other prominent Framers that Hamilton resorted to sly pretenses:

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

Hamilton tries to somehow pit the people against themselves, here. For the purposes of this absurd argument the power of the people  acting through Congress is subsidiary to the same power of the same people acting via the Constitution, for no apparent reason whatever. The only difference is that the people acting via the Constitution  are dead and the people acting via Congress are alive. Instead of “judicial review” I would call this the doctrine of the “tyranny of the ancestors” or the “sovereignty of the deceased.” The living people are the slaves of the dead! The history of the judicial review doctrine is one full of non sequitors, cheap word tricks, and political side-steps.

Other Framers absolutely rejected the doctrine, claiming that each branch could determine the constitutionality of its actions for itself .

Jefferson argued:

“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Though not a Framer, Abraham Lincoln was perhaps a more qualified interpreter and critic of constitutional law than most. The doctrine was still rarely asserted in his day, but he argued:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges.”

Lincoln was reacting to Dred Scott v. Sandford, the first case in which the Court struck down a federal statute since  Marbury v. Madison in which the doctrine was first asserted.

Another argument with far more clarity and force than those inferred to underpin the doctrine of judicial review is that:

“[S]tates alone have the power to ratify changes to the “supreme law” (the U.S. Constitution), and that [suggests] the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power.” (Wikipedia: Judicial_review_in_the_United_States)

Could the doctrine be a glaring threat to the sovereignty of the people and the consent of the governed? Could such a pro-plutocrat doctrine place in dire jeopardy all that was sacred to Washington, Franklin, Jefferson, Madison, and others who were our most visionary and least self-serving Founders? Current events and conditions speak for themselves. The jury of the 99% has reached a verdict: the doctrine of judicial review is foreign to our ideals and values. It is a perversion of both the spirit and the letter of the Constitution.

What next?

Now that the Super Sneaky Supremes have used the self-serving doctrine of judicial review, often in convoluted and back-handed ways, to bring us corporate super-personhood, extra-virgin corporate rights, corporate immortality and liability immunities,  anonymous superpac money/speech, corporate-state crime victim gag orders, etc.; the hand of the 1% is clearly exposed, yanking the scales of justice completely out from under the peeps.

I’m betting that next they uphold the “Papers, Please” immigrant-intimidation-and-race-discrimination laws in various states to fill up the cells of the private prison industry. I bet they’ll taser Democratic voter participation and tear-gas workers’ wages, rights, and working conditions. I’m also betting they throw a flash grenade into “Obamacare”, but don’t blow it up entirely because it was already chock-full of industrial-strength pink slime and pork snouts manufactured by the insurance and pharmaceutical industries.  They’ll “tweak” it just enough to force even more wealth to trickle upwards.

RIP USA (1776-2012)

Poor Richard