DOJ v. Arizona. Justice Brennan v. President Obama.

Now let me get this straight.  (1) The federal government abdicates its responsibility with respect to immigration enforcement. (2) Arizona enacts a law narrowly requiring state enforcement of federal immigration law. (3) The federal government sues Arizona for enacting that law?!

Let me be clear: I’m in the George Bush-John McCain-Barack Obama camp favoring comprehensive immigration reform that both strengthens border security and creates a viable route to citizenship without completely trampling on the righteous and often tortured efforts of millions of legal residents to gain legal citizenship.  In other words, it shouldn’t be easier to be an illegal immigrant and gain citizenship than it is to be a legal immigrant and gain citizenship.

But this DOJ lawsuit — now coupled with Eric Holder’s bizarre announcement that DOJ might launch a second lawsuit if the Arizona law results in “racial profiling” — seems so profoundly misdirected that one has to ask what could possibly be motivating President Obama and Attorney General Eric Holder?  Even if the federal government’s legal position were strong — and I don’t believe it is — there were already several lawsuits challenging the law.  Why add the Department of Justice to the legal battle when it is precisely the abject failure of the federal government that gave rise to the Arizona law in the first place?

Moreover, given the majority American support for the Arizona law, and the majority American opposition to the DOJ lawsuit, the only possible political calculation here is the Hispanic vote, which Obama/Holder presumably believe will tilt even more Democratic with their muscular pummeling of the State of Arizona.  That’s a pretty cynical basis for a misdirected lawsuit.

The federal government is saying that no state can enact a law having anything to do with immigration because the federal government is supreme and exclusive with respect to immigration law, whether or not it chooses to enforce immigration laws.

This is a fascinating lawsuit.  We will discover as a nation whether the federal government can both refuse to enforce duly-enacted federal laws and  forbid states to enforce the same laws.  We will learn whether it is possible for Congress to enact laws, the White House to ignore them, and the Justice Department to forbid states to not ignore them.  Much hangs in the balance.

If an already heavily-politicized Justice Department can both pick laws not to enforce and pick states to stop from trying to enforce those same federal laws, then the Executive Branch truly becomes the supreme branch — no longer subject to the delicate regime of checks and balances contemplated by the Founders.

DOJ’s lawsuit is predicated on the doctrine of preemption: federal law trumps, which is true.  There are two types of preemption: conflict preemption and field preemption.  Conflict preemption forbids state or local laws that conflict with federal law.  The Arizona law is clearly not that kind of law, as it essentially codifies some federal immigration law into Arizona law.  Field preemption forbids any state or local law in a particular field because the federal government has declared in unmistakable terms that only the federal government may legislate in the field at issue.  The DOJ lawsuit seeks field preemption of the Arizona law.

Field preemption is a delicate matter.  It says, in arguable derogation of the Tenth Amendment and our federalist respect for state sovereignty, that the federal government can so thoroughly occupy an issue that no state enactment — even one consistent with the federal enactment — can stand.  Because that magnitude of federal aggrandizement is a troubling phenomenon, the Supreme Court has imposed strict limits on any finding of field preemption.  “[F]ederal regulation . . . should not be deemed pre-emptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”  Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963).

One of the great strengths of our federal system is the ability of states to engage in diverse legislative experimentation.  It is impossible to gauge all of the consequences of legislation before enactment.  Diverse state enactments therefore constitute a kind of political science laboratory for legislation.  We get to see what works, what does not, and why.  Our collective political science as a nation is accordingly more sophisticated.  Wisconsin enacted an income tax before the federal government.  Massachusetts enacted a version of Obamacare before the federal government, and that experiment became a prominent — though obviously not in Congress decisive — part of that national health care debate.  With taxation, labor, and other policies, different states are more or less business-friendly, and we get to see the consequences.  State sovereignty, state legislative latitude, strengthens our nation.

So how do you get to the specter of exclusive federal power?  “Only a demonstration that complete ouster of state power — including state power to promulgate laws not in conflict with federal laws — was ‘the clear and manifest purpose of Congress’ would justify that conclusion.”  Florida Lime & Avocado Growers, at 146.  As Justice Thomas noted by separate opinion in 2005, even if a statute could be interpreted either to find preemption or not find preemption, “we would nevertheless have a duty to accept the reading that disfavors pre-emption… Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action… unless Congress has made such an intention clear and manifest.”  Bates v. Dow Agrosciences LLC, 544 US. 431 (2005).

Has the federal government preempted Arizona’s carefully-crafted S.B. 1070?  No.  The federal immigration laws are not field-preemptive.  There is no express, or even discernible, congressional intent to ouster state power altogether — much less a “clear and manifest purpose of Congress.”  Indeed, “rather than evidence that Congress ‘has unmistakably . . . ordained’ exclusivity of federal regulation in this field, there is evidence in the form of the 1974 amendments to the Farm Labor Contractor Registration Act, 88 Stat. 1652, 7 U.S.C. 2041 et seq. (1970 ed., Supp. IV), that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens.”  De Canas v. Bica, 424 U.S. 351, 357 (1976).

Interestingly, it was the liberal Justice Brennan who authored the unanimous opinion in De Canas v. Bica, the case that is the chief rebuke of DOJ’s current legal theory.  Justice Brennan had this to say about the relationship between illegal immigration and state authority to combat it — and could he have been more prescient?

Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico. In attempting to protect California’s fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens, [the California law] focuses directly upon these essentially local problems and is tailored to combat effectively the perceived evils.

No less can be said of Arizona and S.B. 1070.  It will be interesting to watch Obama’s Justice Department jousting with Justice Brennan.

[Also published at The Daily Caller.]

Massachusetts Gay Marriage Ruling Raises Fascinating Constitutional Questions

Massachusetts strikes again — this time a federal judge rather than the state supreme court.  And again it’s riveting.  In a pair of lawsuits, the federal court struck down the federal Defense of Marriage Act (DOMA) as a violation of both the Equal Protection Clause and the Tenth Amendment. 

According to DOMA, which was passed by the 104th Congress and signed by President Clinton, “No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.”

Judge Tauro says no.  This is fascinating stuff.

I’ve written before that a proper appreciation for liberty compels support for gay marriage.  But I argued that such support must be political, not judicial.  In other words, it is not the province of the judiciary to decide the issue as a matter of constitutional law.  It is a matter to be won, politically, state by state.  I believe the matter is not properly resolved by the judiciary because I do not believe homosexuals are a protected class and thus entitled to “strict scrutiny” analysis under the Equal Protection Clause.

Now Judge Tauro has done two things I didn’t see coming.  First, applying merely the rational relation test for Equal Protection analysis — rather than strict scrutiny — he held that DOMA fails even the massively-indulgent rational relation test.  Second, he resurrected the moribund Tenth Amendment to hold that marriage is not sufficiently a federal concern, and that the federal government therefore had no business legislating about it in derogation of states’ rights to legislate as they choose.  Wow.

Two things to understand:  first, the “rational relation” test has been code for a long time to mean, of course we defer to the legislature, of course they were at least “rational,” therefore no constitutional violation; and second, the Tenth Amendment, since FDR, the New Deal, and expansive interpretation of the Commerce Clause, has been neutered.  “States’ rights” is a fiction.

So Judge Tauro’s decision is unlikely to prevail on appeal.  But part of me wishes it were otherwise.

It has long bothered me that “rational relation” analysis essentially means, unless we find that the entire legislature was stricken by botulism and enacted the law in question while vomiting and hallucinating, it is constitutional.  I think Judge Tauro is wrong to hold that no “rational legislator” could properly conclude that there is a legally cognizable difference between heterosexual and homosexual marriages — but I am delighted that a federal judge would venture into the territory of invigorating “rational relation” analysis.

I am equally delighted that a federal judge would reinvigorate the Tenth Amendment.  Also, unfortunately, not likely to prevail on appeal, since the federal government fairly clearly has an interest in the definition of marriage.  But what a wonderful jurisprudence these appeals could generate, if federal appellate courts or the Supreme Court held that, no, the Tenth Amendment is no bar to DOMA, but yes, the Tenth Amendment does proscribe some federal conduct.  Yes, the tenth part of our sacred Bill of Rights does mean something.  The federal government cannot do anything and everything.

DOMA was a political expedient for the 104th Congress and for President Clinton.  But here’s what DOMA did right: it is inappropriate for one state court to decide the issue of gay marriage, by force of the Full Faith and Credit Clause, for all states.

I support gay marriage, as I support the right to abortion, but I do not believe either of these issues should be dictated by the judiciary.  These are quintessentially political issues, to be resolved in political venues and won, hopefully, on the merits.