Feds Take the Supremacy Clause Personally

Feds Take the Supremacy Clause Personally

By Chief Joel F. Shults, Ed.D

A Constitutional Republic is what Ben Franklin is said to have remarked was produced by the first Constitutional Convention, adding, according to history “if you can keep it”. Whether those words were actually uttered or not is the subject of conjecture, but Franklin’s wit and vision ring true. We are still trying to keep it. Without a history book in front of us, we may have the vague impression that the Constitution and the Declaration of Independence sort of evolved out of the same set of meetings. A quick history review reminds us that the battle for a workable government was not easy or quick.

The Continental Congress, a rather rebellious group dissatisfied with British oppression, did indeed pass the Declaration of Independence. They also passed the first constitution which was the Articles of Confederation, passed in 1777 and subsequently ratified in 1781 under which the country operated until 1789. This document established states as the primary centers of government and provided little authority to the national government. The Continental Congress gave way to the more official Confederation Congress, although made up of mostly the same membership.  When the Revolutionary War was won in 1783, the weakness of the Articles of Confederation was of such concern to such luminaries as Alexander Hamilton, who, along with others, proposed a convention in Philadelphia to amend the Articles. They ended up proposing a whole new document in 1788 it went into effect and established the government structure we now know as the Constitution. This document was not ratified by the states until the addition of the Bill of Rights in 1791.

The intense debates, exemplified by the set of documents written by certain Founding Fathers and known as the Federalist Papers, continue into our present day. What is the role of the federal government? What is the relationship between the federal and state governments? The fear of an overpowering national government led to those amendments we know of as the Bill of Rights, which clarify what natural rights the citizens have that were not to be trampled by government. This included the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

With that background, let’s consider a recent court decision from Texas. Travis County Judge Jan Soifer ruled that a trespassing arrest by Texas law enforcement was unconstitutional. Let’s quickly tell that story.

Governor Abbott developed a program called “Operation Lone Star” whose purpose was to do what the Biden administration refuses to do in dealing with criminal violations of the law by those entering the US at the Mexican border contrary to US Law. An Ecuadorian seeking asylum was found on railroad property and charged with trespass. Judge Soifer ruled that because of the supremacy clause of the Constitution, the state’s enforcement action interfered with the federal task of immigration enforcement.

Travis County District Attorney José Garza, who took office last year under a reform platform, capitulated on the charges, agreeing with the ACLU and the judge that the enforcement action “represents an impermissible attempt to intrude on federal immigration policy”. Garza is known for immediate action to reduce bail requirements including presumptive release even for some felonies and failure to appear at previous court dates.

Governor Abbott expects the ruling to be overturned. He has been faced with floods of unlawful crossings into his state after the Biden administration failed to take a decisive stance on any real engagement with the border crisis. Texas Attorney General tweeted “Lib Austin judge lets a Soros Travis County DA represent State of TX, then declares Op Lone Star unconstitutional. Ridiculous. Biden has FAILED to secure the border. Texas stepped in. We have the right to defend our border if the feds refuse. I’ll fight this nonsense on appeal”.

It doesn’t take an attorney to question a ruling that essentially says that lawlessness must persist if the federal government decides, itself, to ignore the law. The supremacy clause certainly reigns if there is a conflict between a state law and a federal law. It can’t mean that if there is federal jurisdiction there can be no state enforcement. Because bank deposits are federally insured, bank robbery is a federal offense. Does Judge Soifer think Texas law enforcement is prohibited from arresting bank robbers if the FBI decides not to?

Constitutional law is complicated, state and federal interagency cooperation can be complicated, and immigration policy is desperately complicated. What isn’t so complicated is the right of states to enforce the law.