Restraining Arizona, Unleashing the President
Andrew P. Napolitano
by Andrew P. Napolitano: Can
the President Rewrite Federal Law?
When the Obama
administration decided that it had no interest in preventing the
movement of undocumented aliens from Mexico into the southwest United
States, the State of Arizona decided to take matters into its own
hands. Based on a novel theory of constitutional law, namely, that
if a state is unhappy with the manner in which federal law is being
enforced or not being enforced, it can step into the shoes of the
feds and enforce federal law as it wishes the feds would, it enacted
legislation to accomplish that.
created two conflicts that rose to the national stage. The first
is whether any government may morally and legally interfere with
freedom of association based on the birthplace of the person with
whom one chooses to associate. The second is whether the states
can enforce federal law in a manner different from that of the feds.
in addressing all of this earlier in the week, the Supreme Court
overlooked the natural and fundamental freedom to associate. It
is a natural right because it stems from the better nature of our
humanity, and it is a fundamental right because it is protected
from governmental interference by the Constitution itself. Freedom
of association means that without force or fraud you may freely
choose to be in the presence of whomever you please, and the government
cannot force you to associate with someone with whom you have chosen
not to associate, and the government cannot bar anyone with whom
you wish to associate from associating with you.
addressing the now-taken-for-granted federal curtailment of the
right to associate with someone born in a foreign country and whose
presence is inconsistent with arbitrary federal document requirements
and quotas, the Supreme Court earlier this week struck down three
of the four challenged parts of the Arizona statute, which attempted
to supplant the federal regulation of freedom of association with
its own version. It did so because the Constitution specifically
gives to Congress the authority to regulate immigration, and Congress,
by excluding all other law-writing bodies in the U.S. from enacting
laws on immigration, has pre-empted the field.
The court specifically
invalidated the heart and soul of this misguided Arizona law by
ruling definitively that in the area of immigration, the states
cannot stand in the shoes of the feds just because they disapprove
of the manner in which the feds are or are not enforcing federal
law. The remedy for one's disapproval of the manner of federal law
enforcement is to elect a different president or Congress; it is
not to tinker with the Constitution.
cannot have a different meaning in different states, the court held.
And just as the feds must respect state sovereignty in matters retained
by the states under the Constitution (though they rarely do), so,
too, the states must respect federal sovereignty in matters that
the Constitution has unambiguously delegated to the feds.
The court neither
upheld nor invalidated Section 2B of the Arizona statute – which
permits a police inquiry of the immigration status of those arrested
for non-immigration offenses – because the court found that, just
as when the police stop a person for a violation of state or local
law they may check their computers for outstanding warrants for
the person they have stopped, so, too, they may check their computers
for the person's immigration status.
the opinion came down, the Obama administration announced that it
will cease providing Arizona police with the immigration status
of persons in that state, and it will not detain anyone arrested
by Arizona police for immigration violations unless those violations
rise to the level of a felony, which undocumented presence in the
U.S. is not. Thus, this constitutional rebuke to Arizona has become
a personal license for the president. He now has demonstrated that
he will not faithfully enforce federal law as the Constitution requires.
He will only enforce the laws he agrees with.
So, since the
Arizona police cannot arrest and incarcerate anyone for undocumented
presence and since they cannot deliver anyone so arrested to the
feds, what legitimate governmental purpose will be served by what
remains of Arizona's law? None. But the police still will harass
any dark-skinned person in Arizona that they please.
Have we lost
sight of the perpetual tension between human freedom and human law?
Either freedom is integral to our nature, as Thomas Jefferson wrote
in the Declaration of Independence, or it comes from the government,
as the president and the Supreme Court demonstrated they believe
this week. If it is integral to our nature, no government can tell
us with whom we may freely associate. If it comes from the government,
we should abandon all hope, as the government will permit the exercise
of only those freedoms that are not an obstacle to the contemporary
exercise of its powers.
with the author's permission.
June 28, 2012
him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written six books on the U.S. Constitution. The most recent
Is Dangerous To Be Right When the Government Is Wrong: The Case
for Personal Freedom. To find out more about Judge Napolitano
and to read features by other Creators Syndicate writers and cartoonists,
© 2012 Andrew P. Napolitano
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