10th Amendment Mr. Hunter?

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Guest Commentary
by Jason Jackson

As a Republican activist I’d much rather spend my time critiquing Democrats and celebrating Republicans, as I’ve done repeatedly on these pages here, here, here, and here. But every few months it seems Congressman Hunter does something that requires a conservative critique.

A few months ago the Congressman published his ridiculous “Hunter Doctrine,” which placed him in the awkward position of seeming to support the Soviet occupation of Europe after WWII. Now Mr. Hunter is turning his sights to the problem of sanctuary cities. His solution – repeal the 10th Amendment. Mr. Hunter’s solution is to use the federal spending power to abrogate state’s rights by coercing state and municipal authorities to enforce federal policy. That is not a conservative position, nor is it constitutional.

The states’ ability to resist federal coercion is key characteristic of the 10th Amendment, and serves as a bulwark against the progressive centralization of power in the federal government. This principle dates back to when the northern states justly refused to allow their own officers to enforce the Fugitive Slave Act. As Justice Story said back in 1842, “it is an unconstitutional exercise of power to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the Constitution.” Most recently, one of the few silver linings to the Supreme Court’s Obamacare jurisprudence was its conclusion that the withholding federal funds to states that refused to expand Medicare was unconstitutional.

Sanctuary cities are bad policy, and Mr. Hunter’s desire to see that our immigration laws are enforced is commendable, but the use of progressive means to achieve conservative ends can’t be endorsed. Once Mr. Hunter is done vesting the federal government with the power to bully the states we can all be assured that the future application of that power will not be conservative.

*****

Jason Jackson is an attorney and serves as Vice Chairman of the Republican Liberty Caucus of San Diego. He is a graduate of the United States Naval Academy and a veteran of the War on Terrorism, earning the Navy Commendation Medal, the Navy Achievement Medal, and numerous campaign and unit citations for his service in the conflict. He has a master’s degree in Political Science from San Diego State University, and a law degree from Thomas Jefferson School of Law.

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Comments 42

  1. I support ending sanctuary cities, and doing so does NOT repeal the 10th Amendment. I thank Congressman Hunter’s effort in this regard. He’s right. Immigration is the responsibility of the federal government, and they should have ended these city policies long ago.

  2. I do want to give the Congressman credit due – I greatly appreciate his move last week to propose legislation authorizing military recruiters to arm themselves in the wake of the TN shooting.

  3. I think immigration policy and enforcement is one of the 18 powers we delegate to the federal government so I’m not understanding how Hunter is out of his lane on this issue.

  4. Brian – It’s a power assigned to the federal government, not the states. The federal government can’t coerce the states into providing resources to assist in the exercise of its responsibilities. I can’t say it any better than Judge Story did.

  5. Could cities declare themselves “sanctuary” against any federal laws they find distasteful? Just wondering….

  6. Chris – Federal law is always supreme, at issue is the obligation of local officials to participate in its enforcement. Mr. Hunter can send as many ICE agents to San Francisco as he wants. What he can’t do is deputize San Francisco police officers into ICE agents.

  7. I was going to use SB 1070 as an example earlier, HQ. I was not in favorof SB 1070 because of the separation of powers principles but I understand why they did it. The federal government refuses to do the job we delegated to it but interferes in every aspect of our people’s lives.

    I get why Hunter is doing this. He’s frustrated with Valerie Jarrett’s baby boy.

  8. “Mr. Hunter can send as many ICE agents to San Francisco as he wants. What he can’t do is deputize San Francisco police officers into ICE agents.”

    Now I get it– that makes sense.

    Indulge me the exercise, JJ:

    1- Hunter (and I, and others) are frustrated that he Exec Branch won’t enforce the law.
    2- Many of the locals are acting in concert with the Exec Branch to skirt the law.
    3- Is withholding federal funds one way to do it?

    Maybe the answer is “suffer until the elections” and I respect that but there’s gotta be a better way than black helicopters hovering over my favorite restaurants

  9. federal law is supreme but is flagrantly violated with no consequence in Colorado, Washington st. LA and San Francisco. I’m just wondering are there federal laws or even state laws that local municipalities can flagrantly disregard and not enforce without the fear of federal enforcement.

  10. Many on this site supported vigorously and the RPSDC endorsed both Faulconer and DeMaio, Both as City Councilmen signed a pledge to make San Diego a “sanctuary city” regarding Prop 8…

    Its a slippery slope, negating federal laws and what municipal and state oraganizations may find politically unpalatable. Either we are a nation of laws, or we are not. Many make this argument about the Gay Marriage act…while there is overwhelming opposition to the passing of it…and growing calls to resist and ignore it…

    In the case of illegal immigration, this is as much a national security issue as it is a public policy issue.

  11. Chris – The general rule is that states and municipalities can’t violate federal law, but they have no obligation too enforce it.

  12. W.C. – I’m not a libertarian, just a constitutional conservative that believes in consistency – but I’ll take your comment as a compliment nonetheless. Thank you.

  13. Brian – As your aware the legislative branch has many constitutional remedies at its disposal against an uncooperative executive. Those range from the denial of funding to executive priorities, to withholding confirmation of appointees, to the truly draconian measure of impeachment. Mr. Hunter and his establishment allies in DC are reluctant to use the constitutional remedies at their disposal, which is their prerogative, but that doesn’t entitle them to pursue unconstitutional remedies just because they imagine its more politically palpable.

  14. Karen, Brian,
    Where is immigration enumerated as one one of the “few and defined” powers of the federal government?

    Jason – “This is not a conservative position nor is it constitutional.”

    Well said. Great to see that law school and freshman Con Law didn’t strip you of our Framer’s view of the new government.

  15. Brian,

    I am glad to read that you were not a supporter of SB 1070, but I think you should have ended your comment there. If you “understand” why Arizona tried to pass 1070, then you should also “understand” why San Fancisco became a Sanctuary City. These actions are two sides of the same coin. In my opinion, neither was justifiable, no mitigating explanation necessary.

  16. “you should also “understand” why San Francisco became a Sanctuary City.”

    I don’t understand that, HQ. The entire country has become a “Sanctuary Zone” under the Obama Admin because he is derelict in his duty to enforce constitutionally-passed, federal law.

    I do understand the frustration Arizonans have with foreign nationals, illegally domiciled in their state.

    Both our people and the Mexican people deserve a safe, secure, and modern border. Both our people and foreign nationals deserve a clear, distinct, immigration policy which serves the needs of our people and offers opportunity to foreign nationals with the burning desire to become one of our people. Both our people and foreign nationals should rely on vigorous enforcement of that policy.

    None of that is happening, HQ.

    ————————————————————————

    Thank you, Jason for great explanations and answers.

  17. Brian,

    A fundamental human right.is the right to choose where to live. And before you say it, I too agree that there is no right to government assistance, especially for those new to the country. If you accept my first premise, and because you pride yourself as a Libertarian I assume you would, then it follows that all who choose to live here should not be hassled simply because they were born in another country. Hence, San Francisco’s frustration with the Federal Government.

    And for the record, the Obama administration has evicted more people from this country than any former President.

  18. “Article 1. Section 8.1”

    Don’t see it my friend. Do you agree with Madison that the powers of the federal government are “few and defined”? Do you have a source that demonstrates that the original intent of our Framers was to leave this clause open to interpretation as opposed to having it defined and enumerated by the remaining clauses? If it is not defined, how does the constitution restrain government?

  19. The Constitution is not the answer to all our nation’s ills. It is silent on a number of issues (i.e. right to privacy, immigration, minimum wage, marriage) and leaves many things for the states and the people. That was original intent.

    “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.” – Tenth Amendment to the United States Constitution

    I think the problem with conservatism today is conservatives are trying to make the federal government work as opposed to restricting it to its delegated powers.

    “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State are NUMEROUS AND INDEFINITE.” – Madison, Federalist #45

  20. Thank you Thor. It is my understanding that “naturalization” and “immigration” are two separate subjects. One is enumerated as a power delegated to congress and addresses citizenship. The other falls under the jurisdiction of the states and the people and addresses the movement of individuals across borders. See freedom of association.

    Madison addresses the need for the former and a uniform rule of naturalization in Federalist no. 42 because of a fault in the 4th article of confederation regarding privileges and immunities.

  21. That’s the closest we could find to anything related to immigration. The keen minds here can discuss the meaning. Glad to see the discussion!

  22. Considering that the vast majority of the states do not border a foreign country, I am not sure how immigration could be anything other than a Federal issue. That is unless you think that the people of Kansas should delegate immigration policy to the California Legislature rather than the Federal government.

  23. “A fundamental human right is the right to choose where to live.”

    HQ-

    I am not sure you would wholeheartedly agree if tomorrow I and my family choose to live in your back yard…

    I want to live at 1600 Pennsylvania Ave…alas, there is a big ASS fence with armed guards and technical surveillance stopping me from choosing to live there….

    Speaking of hypocrisy….Valerie Jarrett…a completely unelected staff member of Mr. Obama’s administration has more Secret Service security proportionally than many parts of our Southern boarder…why? She is not a cabinet member…or a military general…a Supreme Court Justice, a senator or a congressman…she is not part of the immediate POTUS family…why? Because she is the strings behind the whole immigration operation…she gets why security is important…just not the security of the American people…

  24. Brian and others are right. This is not a states rights issue. Congressman hunter has it right and we should support him in this important issue.
    Phil

  25. I don’t believe immigration was an issue a hundred years ago when my great grandfather, and perhaps the grandfathers of a a number of you, immigrated to this nation.

    It is a problem now and I think it’s important that we ask why? What changed? While there are a number of reasons each could share, I think the fundamental reason is not economic but legal.

    Our economic issues are only the fruit not the root. Our problem is law. Our nation became the most prosperous nation in 5000 years of human history because we adopted transcendent and unchanging ideals that are embodied in our founding documents. Ideals addressing rule of law, individual freedoms, property rights, free markets and limited government.

    Without going into detail, It is my opinion that our departure from those ideals created the immigration problems we discuss today.

    If that is true then the best solution to our dilemma is a return to those ideas (although it appears the likelihood of that is small.)

    If the best solution to our immigration issues is a return to the law of our Framers and the ideas of the great minds that informed them then I think it behooves each of us to root our opinions in something greater than ourselves.

    I have attempted to do that and I believe Jason has as well.

  26. Eric,

    Was Ellis Island set up and run by the State of New York (or New Jersey) or was it run by the Federal government?

    FF,

    As usual you have found a red herring to use as an issue. I have no problem with private property rights and I agree that I have no right to take up residence in your personal home. I do, however, have the right to move to another state if I so choose and I should have the same right to move to another country.

  27. You are correct. The Federal Government took over immigration toward the end of the 19th Century. I have simply asked where was the enumerated power to do so? Prior to Ellis Island there was little immigration regulation and it was handled by the state – see Castle Garden.

  28. HQ- I don’t think the tax payers of sanctuary cities or states see their revenue syphoning off to 100Ks of illegals (the people who you claim have “rights”) in the form of welfare, medical care, school resources as red herrings….nor the parents of the latest victims of illegal criminality….

    My grandfather was an immigrant, my wife is an immigrant…I and millions of other Americans needn’t be lectured from the sanctimonious limousine liberals about how we need to give up our rights for thousands and thousands of unskilled, uneducated, and undocumented vagrants and freeloaders…and it is a travesty and outrage to all those who have immigrated legally, waited their turn, and embraced the American dream..not infiltrate and tresspass for the American handout…it is an immoral and unconstitutional grab for crass political power..bring in the illegals, get them hooked on the Liberal-provided entitlement crack for votes…

  29. Eric,

    I think T.A. clearly pointed out the enumerated power.

    When I read people say things like “I don’t believe immigration was an issue a hundred years ago,” I am reminded of the lyrics to a Billy Joel song, “The good old days weren’t always good and tomorrow ain’t as bad as it seems.”.

    Have a great Sunday!

  30. FF,

    Your claim that freedom to live where you choose is akin to you wanting to set up residence at the White House is a red herring. Your concern about the welfare state and the cost of government assistance to newly-arrived immigrants is legitimate. If you bothered to read my previous post, you would have seen that I wrote “I, too agree that there is no right to government assistance, especiall for those new to the country.”

  31. HQ- I acknowledge your earlier statement..and I once again am pleasantly surprised to see us in tacit agreement (2A and immigration policy)…two for two.. 🙂

    However, I think the debate gets muddled and conflated when people cavalierly banter around “immigration rights/human rights” and the like in various contexts. Immigration, migration, displacement, transiting, fleeing, asylum; these are all status of varying degrees of both legal, and moral recognition of human movement across internationally recognized boundaries. Their status once they arrive and “choose” to stay gets more complicated.

    A desire and a “right” are very different things. I need to explore what “right” and from where this “right” emanates for people to live or move wherever they choose internationally (especially as it relates to unwanted waves of unskilled, uneducated peoples that share no value, moral, or ethical system of attributes with the culture they are infiltrating)

    It sounds noble; yet it begs the question on the purpose and legitimacy of the nation-state and international laws in general. The Russians appear to have “chosen” to live in what was internationally acknowledged sovereign Ukrainian territory of late — Not sure the Ukrainians, or the international community, believe Putin’s soldiers have a “right” to live there. Few would dispute the illegitimacy of Russia’s actions. Yet, 10 times as many illegal immigrants transit our border every year- While they are not coming on T-72 tanks, they, and those supporting the illegal migration of millions of foreigners, are imposing their will and exhausting resources and manpower with a de facto occupation in what is also internationally recognized sovereign territory. One is called annexation..the other a “right.”

  32. Jason Jackson, the general rule is that states and municipalities can’t violate federal law, but they have no obligation to enforce it.

    Well good. Then there are a whole lot of stupid business regulatory and zoning laws I’ve seen on Fleischman that our municipalities don’t have to enforce.

  33. “Madison addresses the need for the former and a uniform rule of naturalization in Federalist no. 42 because of a fault in the 4th article of confederation regarding privileges and immunities.”

    I’ve read the last two paragraphs of Fed 42 at least a half-dozen times this weekend. I think Madison is making the argument that the new Constitution remedies the ambiguity of the Articles by proscribing the States from defining inhabitants, citizens and people.

    More importantly, an argument can be made that the 14th Amendment, and subsequent Civil Rights Act of 1870, affirms that immigration policy and enforcement rests properly with the federal government.

  34. In Fed #42, how many references do we see of “citizenship” vs. “immigration”?

    I count sixteen occurrences of the former and zero of the latter. A helpful method for determining context in law and in Bible study.

    I consulted Webster’s 1828 to confirm that the word “immigration” was indeed in the lexicon of the Framers since it is not used in the Constitution or by Madison in Fed #42. It was.

    I sent a note to Alex Nowrasteh, Immigration Analyst at Cato this morning for clarification. His response, “It appears the they didn’t think there should be limits”.

    Alex referred me to Ilya Somin, Professor at Law at George Mason. Somin comes to the same conclusion. http://openborders.info/blog/immigration-and-the-us-constitution/

    Brian, my concern is that if Conservatism is to have meaning it must conserve our founding ideals. We are not allowed to add our own opinions to the U.S. Constitution. Immigration is not mentioned.

    If we want to amend the U.S. Constitution to add “immigration” as a delegated power without using the proper procedure for such how can we critique Justice Taney in the Dred Scott decision for adding “the right to have slaves as property”? How can we fault Justice Blackmun in Roe v Wade for adding “right to privacy”? Pardon me, how can we critique Justice Kennedy in Obergefell for adding “right to marriage”?

    Chodorov in Rise and Fall of Society states “the tendency to call upon the State for the solution of all the problems of life shows how far we have abandoned the doctrine of rights . .. and have accepted the State as the reality of Society.” This is what separates the conservatism of today versus that of the 19th Century.

    When we hold such positions do we note become accomplices to the destruction of federalism, the 10th Amendment and limited government?

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