Conventional wisdom holds that Republicans are “better” on the Constitution than Democrats.
In reality, this simply isn’t true. Republicans are just as quick to abandon constitutional limits on federal power when it suits their agenda as Dems. I suspect we will see this demonstrated on a regular basis during a Trump administration.
A recent discussion between two Republican stalwarts nicely demonstrates that constitutional ignorance and a lust for centralize power pervades the right every bit as much as it does the left.
During a recent episode of the O’Reilly Factor, Bill O’Reilly and Newt Gingrich got into a discussion about sanctuary cities. In the course of the conversation, Gingrich showed his disdain for the American constitutional system, the Tenth Amendment and its inherent separation of powers.
Some U.S. cities have refused to cooperate with some enforcement of some federal immigration laws. In all of these situations, law enforcement in these cities don’t actively stop ICE enforcement. However, in a narrow sense, they simply don’t provide any support or assistance to federal agents. These cities leave it to ICE to enforce federal law alone.
During his talk with O’Reilly, Gingrich called for the complete federal defunding of these so-called sanctuary cities along with the prosecution of their mayors.
“They don’t get to pick which federal law they obey,” Gingrich insisted.
But O’Reilly questioned whether the feds could actually prosecute mayors for simply refusing to help enforce federal immigration law given America’s “two sovereign systems – state and federal.”
Gingrich responded with condescending smugness.
“Look, Bill, we fought a Civil War to indicate there is one sovereign system. It is the United States of America. No state, no city, can interpose itself between the federal law and the citizens.”
To put it simply, Newt Gingrich is full of crap.
First, it takes a reprehensible human being to assert a war “settles” a debate. Imagine if I insist the sky is green and then punch you in the face until you agree with me. Does that actually make the sky green?
Of course not.
And neither did the Civil War suddenly transform America’s federal system into “one nation” with an all-powerful federal government obliterating the sovereignty of the states. As I explained in a recent article The Evolution of Sovereignty in American Political Thought, the people of the states clearly stand as the sovereign in the American political system – not the federal government. The war didn’t change that, unless, of course, you subscribe to Newt’s eighth grade “might makes right” system of ethics.
Beyond that, Gingrich demonstrates he doesn’t even comprehend the legal precedent guiding state and local governments’ responsibility to enforce federal law. In a series of cases beginning in 1842, the Supreme Court has consistently held that the federal government cannot compel states to enforce federal law. While mayors can’t legally interfere with ICE, they have zero obligation to expend city resources or to require city personnel to help ICE with federal immigration enforcement.
Joseph Story first established the anti-commandeering doctrine in a fugitive slave case Prigg v. Pennsylvania, asserting that because the Fugitive Slave Act was a federal law, ultimately the federal government had to enforce it.
“The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”
The Court built upon this precedent with three subsequent major cases firmly establishing the feds cannot coerce state or local officers into doing their bidding. The decision in Printz v. U.S. serves as the cornerstone decision.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
So despite all of Newt’s smug pontification, the feds cannot prosecute mayors for refusing to help ICE, and they can’t cut off all federal aid to sanctuary cities. At best, Congress could withhold any funding going to the city actually related to immigration enforcement, but nothing more.
Newt Gingrich doesn’t understand the American constitutional system, and he holds some pretty gross moral standards. He needs to disappear into retirement and never come back.
This article was adapted from the original published at the Tenth Amendment Center.