Long before the ink was dry on the parchment containing the U.S. Constitution, the little fiefdoms it created declared war upon one another. The branches of the federal government (Judicial, Executive and Legislative) were not happy with their limitations and began creeping across the dividing lines to usurp power from one another virtually immediately.
Similarly, the federal government as a whole, established as a limited overarching uninfringing structure, empowered only with those powers the states had specifically ceded to it, began to insert roots further in, grabbing power for itself from its paternal/maternal states.
Fast forward ahead to today and what do you find? The battles continue to rage. As the US Supreme Court term winds its way to yet another conclusion, it seems that virtually every case it has agreed to consider involves the question of who actually has the power to do what in our nation/state conglomeration. First there was the multi-day, heated argument over the federal health care plan. With no decision yet announced, the Court then heard argument on a legal challenge to Arizona’s immigration law.
The healthcare case turns on the law students’ favorite clause of the Constitution, the commerce clause. Although arguably a better defense for the law would be to admit that it is actually taxation, the fedgov’s lawyers instead appeared to pin the authority for the legislation on the federal government’s authority to regulate matters affecting interstate commerce. Arguably, direct federal regulation appears in only a small part of the healthcare bill.
Mostly, its federal extortion. For years the federal government has bribed/extorted states to enact laws and otherwise act in manners the fed desired by offering money for projects conditioned on the enactment of certain state laws. The new healthcare bill did nothing to extinguish the practice. The law provides the states with money for state Medicaid programs, but only if the state puppets allow the federal puppetmasters to attach their strings.
In theory, where restrictions or incentives rise to the level of “extortion” the law becomes illegal. Of course, in theory fighting is also against the rules in professional hockey, and Crab Rangoon is made with crab.
The Arizona case, however, is somewhat the opposite. Rather than trying to “prompt” a state into action, when it comes to Arizona and regulating immigration the feds are trying to force the state to stay “hands off.” Although admitting lackluster results in the efforts to deport illegal immigrants, the Federal government still wants no hope from the states that gave the federal enterprise life so long ago.
The immigration law question involves another favorite provision, the Supremacy clause. The US is arguing that its laws on the question of immigration preempt (i.e. prevent) states from acting in a manner different from the feds, and that this includes acting in immigration areas in a manner never considered by the fed itself. It’s sort of like the Bully who beats up the weaker kid for taking the shortcut through the park, because the bully had only said you had to pay tribute if you walked the full nine blocks along Main Street. The mere fact that he had never said everyone had to walk the main street route, didn’t mean that he couldn’t enforce the imaginary rule.
Frankly, I hope that they decide to combine the two cases for purposes of the final opinion. I would love to see a ruling that Arizona can only kick out an illegal alien if the alien refuses to pay for health care.
© 2012 under analysis LLC. Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis, Missouri –based law firm, Riezman Berger, PC. Comments may be sent c/o this newspaper or direct via email to comments@levisongroup.com.