The Supreme Court may soon be asked to revisit Justice Kennedy's 2012 majority opinion reaffirming federal primacy over immigration. Doing so could have implications far beyond the U.S.-Mexico border.
Thank you for the explanation of what the Supreme Court did and didn't do. More and more examples of Republicans who do not want the rule of law, who want to weaken and impoverish Federal laws while ushering in chaos. It's very clear that Republicans cannot govern and, therefore, want to get their positions implemented through minority rule power grabs. All of this in addition to them refusing to work together with Democrats to pass immigration legislation because Trump said not to cooperate. Make certain everyone you know is registered to vote and that they do vote in November. Take deep breaths, get plenty of rest and move forward on protecting democracy.
Doesn't the attempt by NY to use Trump's violation of federal law to bootstrap into a state law violation raise very similar issues? I mean, it certainly seems like the regulation of campaign financing for presedential elections is an area where congress has occupied the field.
So shouldn't the NY state bootstrapping stand or fall with the ability of states like Texas to use violation of federal immigration law in a similar fashion? In other words, pass a law saying any misdemeanor or citation (jay walking, littering etc) committed while present in the US in violation of federal law is now a serious felony?
I get what you're driving at, but I think the NY case is more one of the prosecutors' citing facial violations of federal law as evidence of existence of a violation of pre-existing state law in an area (criminal fraud) that is well within the State's legitimate police powers. That doesn't mean that there isn't a problem with the prosecution's theory in the Bragg case, but it is not of the same taxonomy of a usurpation of enumerated federal functions (foreign affairs, immigration and naturalization, defense) by a state on a theory that the feds aren't doing an adequate job. The problem with the frequent defense raised by states and localities that their divergent actions in enforcing federal powers are merely additive or improvements on either federal performance or federal approaches, is that the state/local approach then becomes the controlling standard - the federal law (which is always subject to change or refinement through political processes) is displaced by later state action. That's where the constitutional rot sets in. As Webster so clearly described the problem, the federal judgment becomes a mere "supplicant" to the assertedly controlling state approach. We can't have that and still have our Constitution as designed.
My understanding is that they have a law which makes it a misdemeanor to falsifying buisness records but a felony to do so with the intent of hiding/committing any other crime. The crime they indicated is the federal election violation.
I'm not saying I'm sure it's the same, but I don't see what distinction you can draw. In both cases the state law uses the existence of a federal criminal status to increase penalties. If federal preemption is supposed to include federal authority to designate enforcement priorities isn't the NY law equally circumventing that?
This clearly is an attack point for the defense, and it would have been far less so if there had previously been a conviction in federal court under the federal statute. But I think the grounds for attack are not so much Supremacy Clause preemption, but simply an evidentiary failing that another crime was committed. I view the Texas law (and all the current fol-de-rol about the barriers) to be a circumstance where Texas is essentially creating its own immigration and naturalization policy and thus big-footing its way into an exclusive federal authority placed off-limits to them by the Constitution.
Yes, I agree that if Trump had been convicted of the federal crime it would be less of an issue. Indeed, that's a big part of why I think it raises Supremacy clause issues: because instead of the feds deciding what gets prosecuted and under what procedures you effectively have a state prosecutor trying a federal election case in state court.
I agree with you regarding practical policy impact but I don't think that's how the legal tests are supposed to work out. I don't think the courts should be making calls here based on how they think the state's entry into an area is likely to work out politically of policy wise and just focus on whether the laws have a form which trespasses into an area that congress has occupied the field regarding.
Excellent summary (as usual - I admire your ability to churn out at a good clip consistently high quality analysis, both legal and historic).
This Texas situation is redolent of the 1820-1861 history of tensions leading to the Civil War. Governor Abbot's neo-Calhounist rhetoric has been as defiant as any exhibited by fire-breathing secessionists of that period. A difference is that we have no Websters or Lincolns to clarify the centrality of the Constitutional issues at stake. It is an incipient crisis that presents a very delicate issue for the sitting President, particularly given the extent of the passions and the disinformation/misinformation fog that have settled over immigration law and policy. No faithful president can permit local or state authorities to actively, by threat of force, interfere with execution of federal court orders or the carrying out by federal officials of their lawful functions. On the other hand, much of this is political hot air exhaust without overt action. There's no question that an Abbott or a Patrick or a Trump etc. can garner considerable public support form a citizenry not sensitive to the potential harm to the constitutional foundations of the Republic caused by the notion that a state my unilaterally determine the final content of federal policy on core, enumerated federal functions.
I've argued Supremacy Clause issues at all levels of the federal court system. In no other area of my practice and career do I feel that I have a profound debt to the earlier champions of preservation of the Union. I hope the absolutely wretched, hyper-ventilated political atmosphere of our time does not distort the outcome of this issue and that, to the extent these issues are reviewed by the Supreme Court, the Court can be unanimous or nearly so in issuing clear, durable reminders of why some subject matters must be left to the federal government and with clear authority to brush aside local or state impulses to displace federal control.
Thank you for the explanation of what the Supreme Court did and didn't do. More and more examples of Republicans who do not want the rule of law, who want to weaken and impoverish Federal laws while ushering in chaos. It's very clear that Republicans cannot govern and, therefore, want to get their positions implemented through minority rule power grabs. All of this in addition to them refusing to work together with Democrats to pass immigration legislation because Trump said not to cooperate. Make certain everyone you know is registered to vote and that they do vote in November. Take deep breaths, get plenty of rest and move forward on protecting democracy.
Doesn't the attempt by NY to use Trump's violation of federal law to bootstrap into a state law violation raise very similar issues? I mean, it certainly seems like the regulation of campaign financing for presedential elections is an area where congress has occupied the field.
So shouldn't the NY state bootstrapping stand or fall with the ability of states like Texas to use violation of federal immigration law in a similar fashion? In other words, pass a law saying any misdemeanor or citation (jay walking, littering etc) committed while present in the US in violation of federal law is now a serious felony?
I get what you're driving at, but I think the NY case is more one of the prosecutors' citing facial violations of federal law as evidence of existence of a violation of pre-existing state law in an area (criminal fraud) that is well within the State's legitimate police powers. That doesn't mean that there isn't a problem with the prosecution's theory in the Bragg case, but it is not of the same taxonomy of a usurpation of enumerated federal functions (foreign affairs, immigration and naturalization, defense) by a state on a theory that the feds aren't doing an adequate job. The problem with the frequent defense raised by states and localities that their divergent actions in enforcing federal powers are merely additive or improvements on either federal performance or federal approaches, is that the state/local approach then becomes the controlling standard - the federal law (which is always subject to change or refinement through political processes) is displaced by later state action. That's where the constitutional rot sets in. As Webster so clearly described the problem, the federal judgment becomes a mere "supplicant" to the assertedly controlling state approach. We can't have that and still have our Constitution as designed.
My understanding is that they have a law which makes it a misdemeanor to falsifying buisness records but a felony to do so with the intent of hiding/committing any other crime. The crime they indicated is the federal election violation.
I'm not saying I'm sure it's the same, but I don't see what distinction you can draw. In both cases the state law uses the existence of a federal criminal status to increase penalties. If federal preemption is supposed to include federal authority to designate enforcement priorities isn't the NY law equally circumventing that?
This clearly is an attack point for the defense, and it would have been far less so if there had previously been a conviction in federal court under the federal statute. But I think the grounds for attack are not so much Supremacy Clause preemption, but simply an evidentiary failing that another crime was committed. I view the Texas law (and all the current fol-de-rol about the barriers) to be a circumstance where Texas is essentially creating its own immigration and naturalization policy and thus big-footing its way into an exclusive federal authority placed off-limits to them by the Constitution.
Yes, I agree that if Trump had been convicted of the federal crime it would be less of an issue. Indeed, that's a big part of why I think it raises Supremacy clause issues: because instead of the feds deciding what gets prosecuted and under what procedures you effectively have a state prosecutor trying a federal election case in state court.
I agree with you regarding practical policy impact but I don't think that's how the legal tests are supposed to work out. I don't think the courts should be making calls here based on how they think the state's entry into an area is likely to work out politically of policy wise and just focus on whether the laws have a form which trespasses into an area that congress has occupied the field regarding.
Excellent summary (as usual - I admire your ability to churn out at a good clip consistently high quality analysis, both legal and historic).
This Texas situation is redolent of the 1820-1861 history of tensions leading to the Civil War. Governor Abbot's neo-Calhounist rhetoric has been as defiant as any exhibited by fire-breathing secessionists of that period. A difference is that we have no Websters or Lincolns to clarify the centrality of the Constitutional issues at stake. It is an incipient crisis that presents a very delicate issue for the sitting President, particularly given the extent of the passions and the disinformation/misinformation fog that have settled over immigration law and policy. No faithful president can permit local or state authorities to actively, by threat of force, interfere with execution of federal court orders or the carrying out by federal officials of their lawful functions. On the other hand, much of this is political hot air exhaust without overt action. There's no question that an Abbott or a Patrick or a Trump etc. can garner considerable public support form a citizenry not sensitive to the potential harm to the constitutional foundations of the Republic caused by the notion that a state my unilaterally determine the final content of federal policy on core, enumerated federal functions.
I've argued Supremacy Clause issues at all levels of the federal court system. In no other area of my practice and career do I feel that I have a profound debt to the earlier champions of preservation of the Union. I hope the absolutely wretched, hyper-ventilated political atmosphere of our time does not distort the outcome of this issue and that, to the extent these issues are reviewed by the Supreme Court, the Court can be unanimous or nearly so in issuing clear, durable reminders of why some subject matters must be left to the federal government and with clear authority to brush aside local or state impulses to displace federal control.