American Thinker

by Peter Nichols

    With the substantial withdrawal of Immigration and Customs Enforcement (ICE) from Minneapolis, a consensus is apparent among journalists of all stripes. The Department of Homeland Security under the leadership Secretary Kristi Noem went too far, the understandable local reaction necessitating a retreat.

    “[M]asked and camouflaged feds are skulking away from the debacle” is the way in which Andrew McCarthy characterized the episode in National Review. Illegal Immigration Is a Law Enforcement Problem | National ... The vitriol directed at Secretary Noem in such ostensibly right-of-center publications equals or surpasses any received by her predecessor, Alejandro Majorkas, whose personal agency in the previous administration’s immigration catastrophe led to his impeachment.

    In reality, it was the resistance perpetrated by mobs, their wealthy backers, and lawless state and local officials and not some zealotry in the Department of Homeland Security that caused the melee and death in Minneapolis. There need have been no confrontations between federal officers and protesters, had the local police been allowed to do their jobs and hold the mob back. This was nothing but sabotage by Democrat scoundrels in high office.

    And despite the resolution apparently achieved in Minneapolis by immigration enforcement chief, Tom Homan, matters remain ominous.

    It appears, subject to further developments, that the federal government now can only enforce the immigration laws in Democratic states with the consent of state and local officials. The midterm election approaching and polls suggesting that people dislike commotions like that in Minneapolis, the Trump Administration must confront the dilemma of risking another imbroglio or failing to deliver on what was an essential campaign promise.

    But of greater significance than pressing electoral concerns and the enforcement of immigration laws is the challenge to the country’s very constitutional structure.

    The twin beams that hold up this country’s republican government are federalism and federal supremacy. All powers not expressly ceded to the federal government or deemed necessary in order to effectuate its powers are reserved for the states or the people. The explicit statement of that precept in the Tenth Amendment is undergirded by the allocation of congressional functions in Article I, Section 8 of the Constitution, the limitation on those powers in Section 9, and the granting and limitation of state powers in Article I, Section 10, Article II, Section 1, and Article IV.

    Paragraphs two and three of the Constitution’s Article VI, announce the rule of federal supremacy, requiring state acceptance of all powers that are confided to the national government:

    The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made , under the Authority of the United States, shall be the supreme Law of the Land; and the Judge is every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial officers both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution…

    The meaning of these clauses was affirmed decisively by Chief Justice John Marshall in the famous McCulloch v. Maryland, 17 U.S. 316, 405, 408 (1819):

    If one proposition could command the universal assent of mankind, we might expect it would be this -- that the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the Government of all; its powers are delegated by all; it represents all and acts for all… The nation, on those subjects on which it can act, must necessarily bind its component parts.

    The immigration laws of the United States appear at 8 U.S.C. 1101 et seq., and over the decades have been modified continually (most notably in 1965) by Democratic and Republican Congresses.

    The history of attempts to flout federal constitutional authority runs back to the Succession and Nullification Crisis of 1832-33, which Andrew Jackson suppressed. It continues through the Civil War and on to President Eisenhower’s use of federal troops to enforce school desegregation in 1957 Little Rock, President Kennedy’s federalization of the Alabama National Guard in 1963 Montgomery, Alabama, and President George H.W. Bush’s use of federal troops during the 1992 Rodney King riots in Los Angeles.

    The President’s legal authority to take such action includes that of 10 U.S.C. 253. It authorizes the President, “by using the militia or the armed forces, or both, or by any other means” to “take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it -- (1) so hinders the execution of the laws of that State and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that state are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

    The section concludes by stating that the situation described in clause (1) is to be considered a denial of the law’s equal protection, which each state must assure, according to the Fourteenth Amendment.

    The mobs that roamed the streets of Minneapolis, haranguing and occasionally attacking federal agents as they attempted to enforce the law, were not so deadly as those who terrorized American cities after the death of George Floyd. In the latter instance, rioters inflicted billions of dollars in damages and approximately twenty homicides with no effective police response.

    The lawlessness in Minneapolis was, however, disturbing enough and at least impeded the access of law-abiding citizens to the public streets. The explicit efforts by Democratic governors in “sanctuary states” to enact legislation prohibiting state law enforcement from cooperating with their federal colleagues in immigration matters are, if anything, a worse threat to law and order.

    In McCulloch v. Maryland, the Court ruled that a state could not obstruct the operation of a federal bank by taxing it. The attempt by state authorities to obstruct federal immigration enforcement by not holding state prisoners on federal detainers and not maintaining perimeters around federal officers making immigration arrests, thereby forcing the officers to fight off mobs as they try to apprehend illegal aliens, is similarly illicit. It is the nullification, interposition, and secession of our day. It must be litigated and struck down.

    We can negotiate and modulate the means of enforcement and adopt procedures in which state and federal officers can cooperate. We cannot negotiate away or compromise the supremacy of federal law. The President must deploy regular troops or a federalized national guard to suppress anarchy in the streets when state officials refuse to do so. In the alternative, we have no republic.