April 25, 2012

Balance of Power at Stake in Arizona Case

The media coverage leading up to today’s Supreme Court argument in United States v. Arizona has focused almost entirely on the issue of illegal immigration. But the most important issue in the case is not immigration policy or even the specifics of whether some or all of Arizona’s immigration law is preempted by federal law. The most profound impact of this case will likely be on the constitutional balance of power between the states and the federal government, an issue that goes back to the nation’s founding and will always be at the heart of any debate about the nature of our democracy, long after the issue of immigration has faded from the headlines.

In a Supreme Court amicus (friend of the court) brief submitted by the Committee for Justice in this case, we remind the Court of what is at stake:
“States have a broad right to protect the public health, safety and welfare of their citizens … [that] should not be superseded by federal acts, unless clearly intended by Congress. Thus, Arizona’s SB 1070 must be upheld if state sovereignty is not to be undermined.”
CFJ Is joined on the brief by co-amici the Center for Constitutional Jurisprudence, the Individual Rights Foundation, Congressmen Ed Royce, Ted Poe and Tom McClintock, and Indiana State Senator Mike Delph. The Congressmen are from states – Texas and California – that have been severely impacted by federal under-enforcement of U.S. immigration law, the very policy that the Obama Administration now argues preempts Arizona’s attempt to enforce U.S. law. State Senator Delph authored a law that addresses the illegal immigration problem in Indiana.

Our brief explains that the Administration “has presented the startling and unsupported argument that the President has unilateral authority to preempt state enactments that may cause conflict with the President’s enforcement priorities” – in this case, the President’s decision not to fully enforce the immigration laws enacted by Congress. To the contrary, the Supreme Court “has consistently held that the Constitution assigns plenary power over immigration policy to Congress, not the President.”

We emphasize that the “Court has maintained a presumption against preemption when analyzing preemption challenges pertaining to an area of law traditionally occupied by the states.” One such area is the states’ protection of public health, safety and welfare, which is precisely what Arizona’s SB 1070 addresses. And to the extent that it addresses immigration policy, the “Arizona law expressly follows congressional policy – and indeed mirrors the provisions of the federal law.”

Regarding the Committee for Justice’s interest in United States v. Arizona, the brief explains that “the system of federalism established by the United States Constitution, including the twin principles of enumerated federal powers and protection of state sovereignty” is central to the rule of law and thus to CFJ’s mission. “Both of these principles will be weakened if the decision below is allowed to stand.”


April 19, 2012

Nominations & Obama’s SCOTUS Challenge

Tomorrow, CFJ Executive Director Curt Levey will be addressing President Obama’s recent, controversial challenge to the Supreme Court’s authority to declare statutes – such as ObamaCare – unconstitutional. The Fifth’s Circuit’s reaction to that challenge, and Obama’s earlier rebuke of the Court’s Citizens United decision while the Justices sat in the audience, will also be discussed.

Levey’s remarks will be part of a 9:00 am plenary panel, titled “The Leahy Rule and Obama’s Challenge to the Courts,” at the Republican National Lawyer's Association’s April 20 Annual Policy Conference in Washington, DC.

The Leahy Rule describes the customary, though sometimes controversial, practice whereby the Judiciary Committee and full Senate stop acting on contested judicial nominees after April 1 of a presidential election year. “Contested” is defined as lacking the support of the Senate Majority Leader, the Minority Leader, the Chair of the Judiciary Committee, or its Ranking Member.

The practice, which originated when Ted Kennedy chaired the Judiciary Committee and Senator Thurmond was its Ranking Member, was originally referred to as the Thurmond Rule. It was renamed after current Judiciary Chairman Patrick Leahy (D – Vt.) after he pledged to abide by it in a December 2006 speech.

Discussing the Leahy Rule tomorrow will be Carrie Severino, the Chief Counsel & Policy Director of the Judicial Crisis Network. Scott McCandless, the RNLA’s Vice President for Washington Operations, will moderate.


April 05, 2012

Judicial Activism & the Commerce Clause

Despite many months of discussion comparing ObamaCare to Mitt Romney’s healthcare reform in Massachusetts, many journalists, politicians and the like still cannot – or will not – get it through their heads that the legal arguments made against ObamaCare simply don’t apply to Romney’s reform. Just last Thursday, the Washington Post reported that supporters of ObamaCare are arguing that
“a ruling [against ObamaCare by the Supreme Court] could prompt a discussion about whether Romney’s health-care overhaul, upon which Obama’s law was largely modeled, is unconstitutional. ‘Romney does not have clean hands here,’ said Rep. Gerald E. Connolly (D-Va.). ‘Saying that we stretched the commerce clause too much, and therefore it’s not constitutional — well, what about the law in Massachusetts that Mitt Romney signed? It has exactly the same premise.’”
In a letter published in yesterday’s Washington Post, CFJ Executive Director Curt Levey corrects the constitutional error made by Rep. Connolly and many others:
“Mr. Connolly appears unaware that the Commerce Clause is part of the U.S. Constitution’s enumeration of the federal government’s limited powers. The clause and limits do not apply to Massachusetts or any other state. The congressman’s apparent lack of a basic understanding of the source of congressional power tells us a lot about why Congress often acts as if there were no limits on its authority.”
Connolly’s error is not a superficial misstatement, like Barack Obama’s famous "I’ve now been in 57 states." Instead, it betrays a misunderstanding of the fundamental relationship between the federal government on the one hand and the states and citizens on the other. The enumeration of Congress’ powers in Article I of the Constitution is not only the basis of federal authority but also – through its implied limits – the primary protector of individual liberty (remember, the Bill of Rights wasn’t in the Constitution approved by the Constitutional Convention).

Obviously, the Founding Fathers wouldn’t have listed Congress’s specific powers in Article I if they had intended the breadth of those powers to be unlimited. That simple fact is the obstacle Solicitor General Donald Verrilli and the rest of the ObamaCare legal team can’t get around. They have never been able to explain how the expansive interpretation of the Commerce Clause necessary to uphold ObamaCare’s individual mandate leads to anything but unlimited Congressional power.

They failed to do so again last week when they faced the nine Justices of the Supreme Court. If the Court strikes down the individual mandate, it will be this fundamental flaw – not judicial activism as the President would have us believe – that doomed ObamaCare.