On the same day made famous by W. Shakespeare, March 15, California’s representative from the Fourth District, Tom McClintock, proved to all that he is the product of public education. His piece in the Washington Examiner titled “The Sanctuary Movement in California and Nullification Doctrine” speaks to the all out ignorance that permeates throughout the political world, particularly when discussing U.S. History. McClintock’s opening sentence starts this piece off in the wrong direction because he completely misdefines what nullification, either of the Jefferson/Madison variety or the Calhoun flavor, is.
“The Doctrine of Nullification is the assertion that any state government which doesn’t like a federal law is free to violate it.” This could not be further from the truth. The issue is not whether the federal law is liked by the states, but rather whether the federal law is constitutionally within the express powers of the general government. Let us speculate for a moment that California in 2004 decided that the war in Iraq was not constitutionally authorized by a formal declaration of war by Congress and decided to not allow its National Guard units to be deployed. California would be nullifying the desires of the general government by not participating in what it deemed to be an unconstitutional act. Or, since McClintock is a Republican, let us look at a real world example of “Red State” nullification. When then President Barack Obama declared that he was just going to wave his executive pen to restrict gun rights in the wake of Sandy Hook in December 2012, Wyoming passed a law that authorized its state police force to not only prevent federal agents from acting on Obama’s unconstitutional decrees, but to arrest federal agents in the process of taking such action. Sure in either scenario, the hypothetical California example or the very real Wyoming example, both states did “not like the federal” action, but the decision to nullify went deeper than just not liking the prospective action.
Then there is McClintock’s “history” of nullification. “It began with tariff disputes and formed the central legal argument the Southern Confederacy used in its attempt to tear the federal union apart.” Again, this man is shaping up to be a complete historical illiterate. Nullification actually began in 1798 with the Virginia/Kentucky Resolves that encouraged the two states to “interpose” on behalf of their citizens to protect them from the Alien and Sedition Acts, which made it a federal crime to criticize members of the government in the Congress, the President, or the various offices of the executive. (Notice the Vice President was fair game.) Then, much like my California – Iraq hypothetical above, it was used by the NEW ENGLAND STATES in the War of 1812 when they did not provide their state militias for the war effort. (emphasis added) And while South Carolina was making a stand on tariffs, nullification was also being executed by various northern states when they refused to acquiesce to the constitutional provision that they return runaway slaves, The Fugitive Slave clause of the Constitution.
Which leads to the utterly stupid comment McClintock makes regarding the Southern Confederacy. Nullification was not the “central legal argument” for secession. It was the central legal argument that caused the secessionist movement. When South Carolina led the way of Secession, it stated in its “Declaration of Causes of Secession” that the general government prevented the states from acting in any way to prevent the return of slaves to those making claims. (Art. IV) And that when member states of the Union repeatedly defied that provision of the Constitution, the “constitutional compact ha[d] been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina [was] released from her obligation.” This is an important point because McClintock’s third sentence–yeah I have not even gotten out of his first paragraph–is the clincher.
“It ignores the supremacy clause of the Constitution, the enumerated powers of Congress, and the exclusive jurisdiction given to the courts to adjudicate disputes involving the states.” This is probably the most misunderstood section of the Constitution in terms of what it actually means. First, the Supremacy Clause is not a negative of the states. The Constitutional Convention actually took up the idea of having a negative over the states and it was quickly and resoundingly defeated. Basically what the Supremacy Clause says is that all acts of the general government that are within its power to commit as expressed by the Constitution are the supreme laws of the land. So basically, if the act does not come out of Art. II, §8, then it is not supreme over anything. It is null, to refer back to Alexander Hamilton.
So what has McClintock so twisted up that he blatantly gets basic U.S. history wrong? California does not want to use its resources to enforce federal law, or as is more commonly called “sanctuary cities.” Now, I am not fully up to speed with the exact events taken by the mayor in Oakland, CA, but I can tell you that I am very familiar with the California state law that has many on the right spitting fire. When an illegal immigrant is taken into custody by local law enforcement for minor offenses irrespective of immigration status, the general government can issue what is called a civil immigration detainer. This basically asks that the local law enforcement hold the individual until a member of ICE or other federal agents can come and either check the detained individual out or detain him on immigration charges. It is up to the state or local police to decide if they want to comply with the civil immigration detainer. Now, if the suspected illegal immigrant is held for a violent crime–think the Stinle case in San Francisco–then the local law enforcement is required to hold the suspect for federal agents. The law in California, and in other states declaring themselves to be “sanctuary,” pertain only to the civil immigration detainer provisions. The language of the state laws makes clear that there is to be no interference with federal agents during the execution of their duly authorized activities nor will there be any denial of demands to hold suspected illegal immigrants detained for violent crimes. Sure, what is on paper and what is actually practiced may not always be parallel, but to say that the state laws are examples of “nullification” betrays McClintock’s complete ignorance of what nullification is and what the actual immigration laws are.
I like many of you want illegal immigration handled. There is an unneeded burden put on local communities by having to absorb the illegal immigrant population in terms of monetary resources and crime. But I also want it to be handled by the entity that is charged by the very Constitution supposedly near and dear to McClintock’s heart–the general government. States are not the agents of the general government. It is actually the other way around. The states are at the very least co-equals with the general government. This means that the resources and the law enforcement structure of the states are not at the beck and call of the general government. If Mr. McClintock is so hot to trot for enforcement of the federal immigration laws, then maybe he should be writing his historically illiterate bromides at people like Lindsey Grahamnesty and John McVain.
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