Obama Jobs Deficit Jumps Unexpectedly, ‘Recovery Summer’ a Pipe Dream
August 06, 2010 11:33 AM
By J. D. Foster
The Obama administration announced “Recovery Summer” in June to highlight the expected gains in jobs and economic strength resulting from the stimulus. Well, maybe next summer.
Initial estimates from the Department of Labor suggest the economy shed a whopping 131,000 jobs in July while employment for the prior two months was revised down by 97,000 jobs. The unemployment rate held steady in August at 9.5 percent despite a drop in employment, because the number of people in the workforce also declined as workers apparently gave up in the face of persistent unemployment.
To an important extent, the wild swings in employment in recent months are due to the decennial census, which led to a steady but temporary rise in government employment, a spike upward in government employment in April, and now two consecutive months of downward plunges, resulting in 454,000 fewer government jobs. In the private sector, job growth increased smartly in April and May but has since dropped to a very anemic three-month average growth rate of about 51,000 jobs.
This data confirms once again that the $862 billion Obama stimulus legislation — as well as all the subsequent budget-busting legislation Congress has enacted under the rubric of “jobs” bills — has failed, as expected.
The weak jobs data also mean the Obama jobs deficit — the difference between current employment and the jobs Obama promised to create by the end of 2010 — now stands at 7.6 million workers. That’s 7.6 million fellow citizens who were promised jobs if Obama was elected and his economic program instituted, and who are still out of work. Unfortunately, continued weakness in the economy indicates they will continue to be out of work for months to come, perhaps as long as Obama adheres to his ideology instead of opting for proven solutions.
Obama’s Failure to Make Good on Jobs Promises: The president’s original target for jobs creation, set during the 2008 fall campaign, was 2.5 million jobs. But as employment fell at the end of 2008, he increased the employment target to 3.5 million jobs. At the time, employment stood at about 135.1 million, according to the DOL’s most commonly used measure. This establishes the Obama jobs target for December 2010 at 138.6 million. It also establishes a basic trajectory for employment that the economy would need to approximate to hit that target.
According to the latest jobs report, total U.S. employment stood at 130.2 million in July, which means the cumulative Obama jobs deficit stands at 7.6 million (see graphic).
Accompanying his jobs promise, the president also emphasized accountability and measuring his presidency by results. By his own official forecast and by his own standard, the Obama jobs deficit attests to the failure of his policies.
Why Has the Obama Stimulus Failed? The centerpiece of Obama’s short-term stimulus program was the $862 billion in poorly targeted tax cuts and ineffectual spending increases he signed into law in February 2009, which has since been supplemented by a number of smaller budget-busting “jobs” bills, including the most recent, a $26 billion state aid package. Obama had one big shot at really helping the economy and he took it, holding nothing back. As short-term economic stimulus, it was doomed from the outset because it was based on the erroneous assumption that deficit spending can increase total demand in a slack economy.
The theory underlying Obama’s stimulus was that the economy was weak because total demand was too low. The suggested solution is then to increase demand by increasing government spending, exploding the deficit in the process.
This theory of demand manipulation through deficit spending ignores the simplest of realities: Government spending must be financed. So to finance deficit spending, government must borrow from private markets, thereby reducing private demand by the same amount as deficit spending increases public demand. In effect, the theory says that if I take a dollar from my right pocket and put it in my left, then I’m a dollar richer. No wonder it always fails.
Obama Tax Hike Weakening Job Creation: The federal government cannot stimulate the economy in the short term by increased borrowing and shuffling demand across the economy through wasteful deficit spending, but government can stimulate the economy by improving incentives and the general economic environment. Unfortunately, Obama’s promised tax hike is already draining the vitality from the economy and job creation.
Businesses invest when they are confident enough to take risks in pursuit of opportunity. Individuals and businesses across the nation see tremendous opportunities for starting new businesses, investing, hiring new workers, expanding into new markets. Many are holding back, however, due to concerns about the economy, while others are holding back due to concerns about the threatening policies from Washington, most especially the tax hikes Obama promised and Congress intends to deliver.
For private-sector job creation to accelerate to bring down the unemployment rate and the Obama jobs deficit, step one is for Washington’s job-destruction machine to take a long vacation. Facing such a weak economy, the intentions of Obama and his congressional allies to raise tax rates on small businesses, on capital gains and dividends, and through the death tax go well beyond ideology to economic policy malpractice. Obama should call on the Congress to forgo all tax hikes — especially those on work effort, small businesses, savers, and investors — at least until the economy has created enough jobs to return the country to full employment.
– J. D. Foster is Norman B. Ture Senior Fellow in the economics of fiscal policy in the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation.
Friday, August 6, 2010
Tuesday, August 3, 2010
Obama & Iraq ... complete failure
no commander in chief he ....
Charles Krauthammer says:
On President Obama’s speech on Iraq:
The withdrawal of the troops, the drawdown, was something negotiated by the Bush administration, incidentally, in response to Iraqi demands, not as a concession to the American left. He made his decisions on what he thought were the American national interests.
Also, the surge was something that Obama had opposed, and the success of the surge is the only reason why we’re now in a position that we can draw down.
However, what’s really disturbing is that in Obama’s speech he spoke about ending the war four times. He didn’t use the word “success” or anything of the sort, and he did not speak about a vision for a future of America and Iraq together.
The Iraqis only hear the words “end the war” from the president. A president who has not given a single speech on Iraq. A president who’s essentially washed his hands of the war. All he’s ever spoken about is ending it and getting out.
The only influence he‘s exerted is by sending Biden over into the region. That is not exactly exerting his authority. The warring parties — the five who are disputing who’s going to rule Iraq now — are not taking any orders or influence from Washington.
The problem is this: The Saudis are exerting influence on the parties, the Iranians are exerting influence, and the Turks are, the Americans have not. Because the Iraqis understand all this administration wants is out rather than shaping a future. …
Obama had one task. [It was] not succeeding in the surge — that already happened. [It was] not announcing a timetable — that was already established. He had one task — getting elections done and having a stable government established. On that he has not succeeded — it’s not all his fault, the majority of the fault lies with the Iraqis themselves – but … as a result, the entire enterprise, with all the blood and the suffering involved, is now in jeopardy.
Charles Krauthammer says:
On President Obama’s speech on Iraq:
The withdrawal of the troops, the drawdown, was something negotiated by the Bush administration, incidentally, in response to Iraqi demands, not as a concession to the American left. He made his decisions on what he thought were the American national interests.
Also, the surge was something that Obama had opposed, and the success of the surge is the only reason why we’re now in a position that we can draw down.
However, what’s really disturbing is that in Obama’s speech he spoke about ending the war four times. He didn’t use the word “success” or anything of the sort, and he did not speak about a vision for a future of America and Iraq together.
The Iraqis only hear the words “end the war” from the president. A president who has not given a single speech on Iraq. A president who’s essentially washed his hands of the war. All he’s ever spoken about is ending it and getting out.
The only influence he‘s exerted is by sending Biden over into the region. That is not exactly exerting his authority. The warring parties — the five who are disputing who’s going to rule Iraq now — are not taking any orders or influence from Washington.
The problem is this: The Saudis are exerting influence on the parties, the Iranians are exerting influence, and the Turks are, the Americans have not. Because the Iraqis understand all this administration wants is out rather than shaping a future. …
Obama had one task. [It was] not succeeding in the surge — that already happened. [It was] not announcing a timetable — that was already established. He had one task — getting elections done and having a stable government established. On that he has not succeeded — it’s not all his fault, the majority of the fault lies with the Iraqis themselves – but … as a result, the entire enterprise, with all the blood and the suffering involved, is now in jeopardy.
Immigration Enforcement - Arrogance, Hypocrisy & Stupidity part II
Obama’s Immigration Nightmare
August 03, 2010 1:28 PM
By Mark Krikorian
Apart from general abhorrence of immigration enforcement, I continue to believe that one of the concrete reasons the administration doesn’t want local police asking about immigration status and then informing ICE about illegal aliens is that those illegals whom the feds tell cops to release will go on to commit other crimes, much to the administration’s embarrassment.
A case in point:
The Virginia man suspected in a drunken-driving crash that killed a Catholic nun in Prince William County this weekend is an illegal immigrant and repeat offender who was awaiting deportation and who federal immigration authorities had released pending further proceedings, police said Monday.
Okay, so here’s a nun-killing, drunk-driving illegal alien whom federal authorities released on his own recognizance pending a deportation hearing. Hard to spin that. Little wonder that “messages left with ICE and the Homeland Security Department were not returned.”
August 03, 2010 1:28 PM
By Mark Krikorian
Apart from general abhorrence of immigration enforcement, I continue to believe that one of the concrete reasons the administration doesn’t want local police asking about immigration status and then informing ICE about illegal aliens is that those illegals whom the feds tell cops to release will go on to commit other crimes, much to the administration’s embarrassment.
A case in point:
The Virginia man suspected in a drunken-driving crash that killed a Catholic nun in Prince William County this weekend is an illegal immigrant and repeat offender who was awaiting deportation and who federal immigration authorities had released pending further proceedings, police said Monday.
Okay, so here’s a nun-killing, drunk-driving illegal alien whom federal authorities released on his own recognizance pending a deportation hearing. Hard to spin that. Little wonder that “messages left with ICE and the Homeland Security Department were not returned.”
Arizona, Immigration Enforcement, and the Constitution
Andrew McCarthy is one smart bad-ass dude !
Preemption & Prosecutorial Discretion: Response to Heather Mac Donald
August 03, 2010 3:42 PM
By Andy McCarthy
I appreciate Heather’s kind words and her thoughtful response to the points I raised in challenging one argument she made in the course of dismantling Judge Susan Bolton’s ruling on the Arizona immigration law. Heather has good cause to be unsure of how today’s federal courts will resolve the preemption question she posits — in a nutshell: Can a state, consistent with the Constitution, enforce a state-law immigration penalty that is consonant with federal statutory law but contravenes a presidential policy of non-enforcement? My confident assertion that a state can do so is based on my understanding of the Constitution’s division of federal and state power, rather than on how the whimsical federal courts may choose to “evolve” that division.
As Heather suggests, I do draw a bright line between executive enforcement policy (which is politics) and congressional statutes (which are law). On this point, the foundational disagreement I have with Heather is about the Constitution. Heather writes: ”In so exercising his discretion, a president has not entered into some extra-constitutional ‘political’ territory, as Andy seems to suggest; he is operating within his constitutional legal powers.” Respectfully, I think this misinterprets the Constitution, which is foremost a political document, not a legal one.
The Constitution enumerates and divides the political powers of the federal government, reserving to the sovereign states and the people all rights and powers not expressly vested. The fact that the president’s powers stem from the Constitution does not, as Heather infers, mean his exercise of them is a “legal” act; nor does that exercise’s political nature make it “extra-constitutional.”
When, for example, a president commits U.S. armed forces, as the Constitution empowers him to do, in contravention of a statute (e.g., the War Powers Resolution), the federal courts refrain from deciding the dispute because it is a “political question.” Yes, I suppose it can be said that the president is legally the commander-in-chief, and that Congress has followed its legal procedure for passing a law, but the controversy does not therefore become a legal one fit for judicial resolution. It remains a political one to be decided at the ballot box. And, to take another example, one of the main checks given Congress on abuses of executive power is impeachment, which is a political remedy, not a legal one — even though there is a legal process for carrying it out.
The fact that law has no existence absent the discretionary decisions that attend its enforcement does not make those decisions any less political or any more legal. Law defines what we can do; within those parameters, what we choose to do is a political call involving resources and policy priorities. Heather asserts that a law-enforcement decision to refrain from enforcing a law is “as much a part of the law” as the enactment of the law by the legislative process. I don’t agree. After all, try running that in reverse: If there is no statute, law enforcement has no decision to make — if it tries to enforce that which Congress has not enacted, that is a violation of law. Moreover, if the public is unhappy that the cops are pouring out the Colt 45s instead of arresting the loiterers, that can be a major political issue even though there is no legal recourse over the failure to enforce the law. Mayor Rudy Giuliani won reelection going away largely because New Yorkers liked his stepped-up enforcement policy on petty offenses, which reduced overall crime and improved quality of life.
Perhaps because I see the Arizona situation more as a political one than a legal one, I come at it from a different angle. The nation is built on a political power-sharing arrangement in which the states maintained their sovereignty while surrendering certain powers to the national government. Two important things flow from this.
First, the states are sovereign. That is not just a slogan, it is a concept that has real meaning. Inherent in sovereignty is the natural right of self-defense. If states are no longer at liberty to protect their territories and defend their citizens, they are no longer sovereign, and the social compact on which the nation is based is broken.
Second, the presumption in our system is against the forfeiture of rights and powers. The Constitution expressly provides that unless a power has been delegated to the federal government, it is retained by the states. Our law holds that individuals are not deemed to forfeit their fundamental rights unless there has been a waiver that is clear, knowing, and voluntary. I don’t see why sovereign states would rate any less deference. This is critical because (a) the Constitution does not delegate the power of immigration enforcement to the national government (the power to set terms for naturalization, which is federal, is not a power over immigration enforcement), (b) the power to regulate immigration was understood to be retained by the states, as a core part of their police power, for the first century-plus of our nation’s history, and (c) the states have continued to exercise this power and have never forfeited it. In point of fact, until the turn of the 19th century, the pertinent question was whether the national government had any power over immigration enforcement (Jefferson, for example, was quite certain it did not). It was federal power that was dubious; state power was unquestioned. See, e.g., Joseph Baldacchino, “Regulation of Immigration Historically a State Function” (National Humanities Institute, July 19, 2010).
To me, this is the necessary context for any consideration of a federal attempt to prohibit the exercise of state police power within a state’s sovereign territory. Such a prohibition should not happen unless there is a clear constitutional mandate — i.e., an unambiguous indication that the states delegated the power in question to the federal government or that the state’s exercise of the power interferes with some federal right clearly protected by the Constitution. This is what the Supremacy Clause stands for.
Like most judicial inventions, the preemption doctrine, which is the root of my narrow disagreement with Heather, started out harmless enough: holding that where there is a clear delegation of power to the federal government the states either may not act at all (as in the power to coin money or establish a uniform rule of naturalization), or may not act in a manner contradictory to federal law. But here is the problem: judge-made federal law, particularly in constitutional jurisprudence, often becomes nothing more than a gussied up power-grab: either the judiciary usurps the powers of the other federal branches, or the judiciary is the means by which the federal government usurps the power of the states — with the federal courts becoming more powerful because they get the last word. (Heather’s insightful discussion of De Canas v. Bica testifies to the unpredictable willfulness and shifting politics of judicial decision-making.)
I don’t see how it could be credibly disputed that federal immigration enforcement is the result of a judicially led power-grab. Have a look, for example, at this paper on federal immigration regulation from the (sympathetic) University of Minnesota’s “Human Rights Library.” In the course of trying to overwhelm the reader with the purported plethora of sources of federal power in this area, the authors unintentionally undermine their case. They are forced to concede that ”in the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government’s exclusive and plenary power over immigration.” Well, yeah, it’s not easy to identify something that isn’t there.
So what happened? What usually happens: the Supreme Court began rationalizing — umm, maybe we can find it in the naturalization power; or the power to regulate foreign commerce; or the power to conduct foreign affairs; or the war power; or the power to maintain armies and navies; or the power to punish piracy and crimes on the high seas; or to impose import duties; or to codify offenses against the law of nations; or to appoint foreign diplomats; or the Migration and Imporation Caluse (art. I, sec. 9, cl. 1). If none of that sounds too compelling, there’s always the “necessary and proper clause” — a convenient catch-all: When a court can’t directly justify federal action by some enumeration of authority, it contends the action is derivatively justified as necessary to the exercise of some purportedly related enumerated power (often without a very convincing explanation of why power A not only implies power B but that the states understood this and thus clearly delegated power B).
Over time (in this case, over more than a century), this dizzying exercise devolves into judicial ipse dixit. So it was, the UMinn authors conclude, that in 1899 the Supreme Court, in the so-called Chinese Exclusion Case (Chae Chan Ping v. U.S.), “eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles.” The concept of national sovereignty suddenly made the federal government preeminent — and never you mind that (a) in our system, the states are also sovereign, (b) the states had been regulating immigration since the Constitution’s adoption, and (c) most things that are clear, “absolute and unqualified” don’t take 110 years to discover.
Which is to say, this was a fabrication — and one, it’s worth pointing out, that Arizona did not challenge. In the case before Judge Bolton, the state did not contest federal supremacy over immigration enforcement within Arizona’s borders. That calls into question whether the issue would properly be before the Supreme Court if the state fails to raise it as the litigation goes forward. (In my mind, it’s strictly a legal question that doesn’t require development of a factual record, so the state should be permitted to raise it in the Ninth Circuit.) Heather is quite right that where the courts will come out on preemption is an unknown. After all, those same courts, having started with a situation in which state enforcement was a given and federal enforcement was questionable, have willed us to our current straits, where we are to believe that the opposite is true.
But that’s not the way it should be. In 1837, the Supreme Court (in New York v. Miln) upheld a state law that allowed New York City to expel arriving aliens it “deemed” likely to become a public burden. As Justice Philip Barbour explained, the state had acted
to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so. [Emphasis added.]
There is no good reason why what was true in 1837 should not be true today. Even if we accept, for argument’s sake, that the courts have discovered and justified federal powers to enact and enforce immigration laws, there is no reason that should vitiate concurrent, sovereign state authority — authority that existed before the putative federal authority, that the states have never delegated (and therefore retain), and that, in the Arizona instance, is actually consistent with pertinent federal law.
A couple of final points. Heather assumes there is a “federal interest in speaking with a single, national voice when it comes to immigration matters.” As a matter of law, if there is such an interest, I’d argue that this is a recent development in our jurisprudence. As a matter of fact, I’d contend that there may be a federal interest (i.e., the interest of the federal government, which wants to control the area) but there is no national interest. The country is divided on immigration, as we are divided on many things, and that’s fine as long as every state is not burdened by the choice of individual states not to enforce the law.
While Heather is troubled by the prospect of different states having different prosecutorial regimes for immigration, that is the way it is on many issues (drugs, guns, etc.) and it is the way it has always been on immigration. As related in the Baldacchino paper I cite above, in the so-called Passenger Cases (1849), the Court discussed the distinction between the naturalization power, which is federal, and immigration enforcement, which was a state matter. Chief Justice Roger Taney (in a dissenting opinion) argued that it was obvious that the naturalization power had been delegated to the feds because otherwise, under the privileges and immunities clause, a single state could determine for every state “what foreigner should become one of its citizens, and be entitled to hold lands, and to vote at its elections.” The court clearly assumed that different states would continue to enforce different enforcement standards.
Finally, the Supreme Court has recently been deferential to the power of states to enact and enforce law in the face of a claim that this power was trumped by the president’s capacious authority to conduct foreign affairs.
In Medellin v. Texas (2008), President Bush attempted to force Texas to vacate a Mexican national’s capital murder conviction because the state had failed to comply with the Vienna Convention obligation to allow the defendant to contact his consulate — even though the defendant had failed to make a timely Vienna Convention claim under state law. The Supreme Court held that the state’s power to enforce its valid laws was not overcome by the president’s foreign-affairs authority or his power to take care that the laws be faithfully executed. Congress had not enacted any statute that contravened state law, and the justices were not persuaded by claims that the state law frustrated the president’s ability to enforce a uniform national standard in an arena — foreign policy — where presidential power is immense.
There is a colorable argument that our jurisprudence has created a federal immigration-enforcement role that the Constitution did not make entirely clear. There should not be a credible argument that the states are precluded from enacting immigration laws that are consistent with congressional statutes.
Preemption & Prosecutorial Discretion: Response to Heather Mac Donald
August 03, 2010 3:42 PM
By Andy McCarthy
I appreciate Heather’s kind words and her thoughtful response to the points I raised in challenging one argument she made in the course of dismantling Judge Susan Bolton’s ruling on the Arizona immigration law. Heather has good cause to be unsure of how today’s federal courts will resolve the preemption question she posits — in a nutshell: Can a state, consistent with the Constitution, enforce a state-law immigration penalty that is consonant with federal statutory law but contravenes a presidential policy of non-enforcement? My confident assertion that a state can do so is based on my understanding of the Constitution’s division of federal and state power, rather than on how the whimsical federal courts may choose to “evolve” that division.
As Heather suggests, I do draw a bright line between executive enforcement policy (which is politics) and congressional statutes (which are law). On this point, the foundational disagreement I have with Heather is about the Constitution. Heather writes: ”In so exercising his discretion, a president has not entered into some extra-constitutional ‘political’ territory, as Andy seems to suggest; he is operating within his constitutional legal powers.” Respectfully, I think this misinterprets the Constitution, which is foremost a political document, not a legal one.
The Constitution enumerates and divides the political powers of the federal government, reserving to the sovereign states and the people all rights and powers not expressly vested. The fact that the president’s powers stem from the Constitution does not, as Heather infers, mean his exercise of them is a “legal” act; nor does that exercise’s political nature make it “extra-constitutional.”
When, for example, a president commits U.S. armed forces, as the Constitution empowers him to do, in contravention of a statute (e.g., the War Powers Resolution), the federal courts refrain from deciding the dispute because it is a “political question.” Yes, I suppose it can be said that the president is legally the commander-in-chief, and that Congress has followed its legal procedure for passing a law, but the controversy does not therefore become a legal one fit for judicial resolution. It remains a political one to be decided at the ballot box. And, to take another example, one of the main checks given Congress on abuses of executive power is impeachment, which is a political remedy, not a legal one — even though there is a legal process for carrying it out.
The fact that law has no existence absent the discretionary decisions that attend its enforcement does not make those decisions any less political or any more legal. Law defines what we can do; within those parameters, what we choose to do is a political call involving resources and policy priorities. Heather asserts that a law-enforcement decision to refrain from enforcing a law is “as much a part of the law” as the enactment of the law by the legislative process. I don’t agree. After all, try running that in reverse: If there is no statute, law enforcement has no decision to make — if it tries to enforce that which Congress has not enacted, that is a violation of law. Moreover, if the public is unhappy that the cops are pouring out the Colt 45s instead of arresting the loiterers, that can be a major political issue even though there is no legal recourse over the failure to enforce the law. Mayor Rudy Giuliani won reelection going away largely because New Yorkers liked his stepped-up enforcement policy on petty offenses, which reduced overall crime and improved quality of life.
Perhaps because I see the Arizona situation more as a political one than a legal one, I come at it from a different angle. The nation is built on a political power-sharing arrangement in which the states maintained their sovereignty while surrendering certain powers to the national government. Two important things flow from this.
First, the states are sovereign. That is not just a slogan, it is a concept that has real meaning. Inherent in sovereignty is the natural right of self-defense. If states are no longer at liberty to protect their territories and defend their citizens, they are no longer sovereign, and the social compact on which the nation is based is broken.
Second, the presumption in our system is against the forfeiture of rights and powers. The Constitution expressly provides that unless a power has been delegated to the federal government, it is retained by the states. Our law holds that individuals are not deemed to forfeit their fundamental rights unless there has been a waiver that is clear, knowing, and voluntary. I don’t see why sovereign states would rate any less deference. This is critical because (a) the Constitution does not delegate the power of immigration enforcement to the national government (the power to set terms for naturalization, which is federal, is not a power over immigration enforcement), (b) the power to regulate immigration was understood to be retained by the states, as a core part of their police power, for the first century-plus of our nation’s history, and (c) the states have continued to exercise this power and have never forfeited it. In point of fact, until the turn of the 19th century, the pertinent question was whether the national government had any power over immigration enforcement (Jefferson, for example, was quite certain it did not). It was federal power that was dubious; state power was unquestioned. See, e.g., Joseph Baldacchino, “Regulation of Immigration Historically a State Function” (National Humanities Institute, July 19, 2010).
To me, this is the necessary context for any consideration of a federal attempt to prohibit the exercise of state police power within a state’s sovereign territory. Such a prohibition should not happen unless there is a clear constitutional mandate — i.e., an unambiguous indication that the states delegated the power in question to the federal government or that the state’s exercise of the power interferes with some federal right clearly protected by the Constitution. This is what the Supremacy Clause stands for.
Like most judicial inventions, the preemption doctrine, which is the root of my narrow disagreement with Heather, started out harmless enough: holding that where there is a clear delegation of power to the federal government the states either may not act at all (as in the power to coin money or establish a uniform rule of naturalization), or may not act in a manner contradictory to federal law. But here is the problem: judge-made federal law, particularly in constitutional jurisprudence, often becomes nothing more than a gussied up power-grab: either the judiciary usurps the powers of the other federal branches, or the judiciary is the means by which the federal government usurps the power of the states — with the federal courts becoming more powerful because they get the last word. (Heather’s insightful discussion of De Canas v. Bica testifies to the unpredictable willfulness and shifting politics of judicial decision-making.)
I don’t see how it could be credibly disputed that federal immigration enforcement is the result of a judicially led power-grab. Have a look, for example, at this paper on federal immigration regulation from the (sympathetic) University of Minnesota’s “Human Rights Library.” In the course of trying to overwhelm the reader with the purported plethora of sources of federal power in this area, the authors unintentionally undermine their case. They are forced to concede that ”in the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government’s exclusive and plenary power over immigration.” Well, yeah, it’s not easy to identify something that isn’t there.
So what happened? What usually happens: the Supreme Court began rationalizing — umm, maybe we can find it in the naturalization power; or the power to regulate foreign commerce; or the power to conduct foreign affairs; or the war power; or the power to maintain armies and navies; or the power to punish piracy and crimes on the high seas; or to impose import duties; or to codify offenses against the law of nations; or to appoint foreign diplomats; or the Migration and Imporation Caluse (art. I, sec. 9, cl. 1). If none of that sounds too compelling, there’s always the “necessary and proper clause” — a convenient catch-all: When a court can’t directly justify federal action by some enumeration of authority, it contends the action is derivatively justified as necessary to the exercise of some purportedly related enumerated power (often without a very convincing explanation of why power A not only implies power B but that the states understood this and thus clearly delegated power B).
Over time (in this case, over more than a century), this dizzying exercise devolves into judicial ipse dixit. So it was, the UMinn authors conclude, that in 1899 the Supreme Court, in the so-called Chinese Exclusion Case (Chae Chan Ping v. U.S.), “eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles.” The concept of national sovereignty suddenly made the federal government preeminent — and never you mind that (a) in our system, the states are also sovereign, (b) the states had been regulating immigration since the Constitution’s adoption, and (c) most things that are clear, “absolute and unqualified” don’t take 110 years to discover.
Which is to say, this was a fabrication — and one, it’s worth pointing out, that Arizona did not challenge. In the case before Judge Bolton, the state did not contest federal supremacy over immigration enforcement within Arizona’s borders. That calls into question whether the issue would properly be before the Supreme Court if the state fails to raise it as the litigation goes forward. (In my mind, it’s strictly a legal question that doesn’t require development of a factual record, so the state should be permitted to raise it in the Ninth Circuit.) Heather is quite right that where the courts will come out on preemption is an unknown. After all, those same courts, having started with a situation in which state enforcement was a given and federal enforcement was questionable, have willed us to our current straits, where we are to believe that the opposite is true.
But that’s not the way it should be. In 1837, the Supreme Court (in New York v. Miln) upheld a state law that allowed New York City to expel arriving aliens it “deemed” likely to become a public burden. As Justice Philip Barbour explained, the state had acted
to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so. [Emphasis added.]
There is no good reason why what was true in 1837 should not be true today. Even if we accept, for argument’s sake, that the courts have discovered and justified federal powers to enact and enforce immigration laws, there is no reason that should vitiate concurrent, sovereign state authority — authority that existed before the putative federal authority, that the states have never delegated (and therefore retain), and that, in the Arizona instance, is actually consistent with pertinent federal law.
A couple of final points. Heather assumes there is a “federal interest in speaking with a single, national voice when it comes to immigration matters.” As a matter of law, if there is such an interest, I’d argue that this is a recent development in our jurisprudence. As a matter of fact, I’d contend that there may be a federal interest (i.e., the interest of the federal government, which wants to control the area) but there is no national interest. The country is divided on immigration, as we are divided on many things, and that’s fine as long as every state is not burdened by the choice of individual states not to enforce the law.
While Heather is troubled by the prospect of different states having different prosecutorial regimes for immigration, that is the way it is on many issues (drugs, guns, etc.) and it is the way it has always been on immigration. As related in the Baldacchino paper I cite above, in the so-called Passenger Cases (1849), the Court discussed the distinction between the naturalization power, which is federal, and immigration enforcement, which was a state matter. Chief Justice Roger Taney (in a dissenting opinion) argued that it was obvious that the naturalization power had been delegated to the feds because otherwise, under the privileges and immunities clause, a single state could determine for every state “what foreigner should become one of its citizens, and be entitled to hold lands, and to vote at its elections.” The court clearly assumed that different states would continue to enforce different enforcement standards.
Finally, the Supreme Court has recently been deferential to the power of states to enact and enforce law in the face of a claim that this power was trumped by the president’s capacious authority to conduct foreign affairs.
In Medellin v. Texas (2008), President Bush attempted to force Texas to vacate a Mexican national’s capital murder conviction because the state had failed to comply with the Vienna Convention obligation to allow the defendant to contact his consulate — even though the defendant had failed to make a timely Vienna Convention claim under state law. The Supreme Court held that the state’s power to enforce its valid laws was not overcome by the president’s foreign-affairs authority or his power to take care that the laws be faithfully executed. Congress had not enacted any statute that contravened state law, and the justices were not persuaded by claims that the state law frustrated the president’s ability to enforce a uniform national standard in an arena — foreign policy — where presidential power is immense.
There is a colorable argument that our jurisprudence has created a federal immigration-enforcement role that the Constitution did not make entirely clear. There should not be a credible argument that the states are precluded from enacting immigration laws that are consistent with congressional statutes.
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