Republican appointees on the Supreme Court twice this week abandoned the Constitution to give new powers to the federal government and the Obama administration. The question for conservatives and patriots is: What can be done about it?
On Monday, in the Arizona ruling, the court acted to create a dangerous and illogical doctrine of federal pre-emption on immigration law. States no longer have any right to help defend against foreign invasion. They must rely on Eric Holder and Janet Napolitano if that invasion is without tanks and missiles. Good luck with that.
On Thursday, in the Obamacare ruling, the court had to effectively rewrite the Affordable Care Act to justify it as constitutional. They discovered something the authors and proponents of the act vehemently denied: It is a taxation measure, not an unconstitutional expansion of the commerce power.
Advertisement - story continues below
In the Arizona case, the Supreme Court has legislated a new doctrine of federal pre-emption: The federal government may not only establish some areas of law as off limits to states, but it can unilaterally decide to bar states from enforcing a law it has chosen not to enforce. Thus, the ruling allows the executive branch to effectively repeal acts of Congress.
No one will deny that there are grounds for federal pre-emption in some areas – for example, when a state legislates in an area either the Constitution or Congress has claimed for exclusive federal jurisdiction. States cannot establish their own currency or establish diplomatic relations with foreign nations. Yet, in many cases Congress has legislated without claiming exclusive jurisdiction. Justice Kennedy had to resort to a tortured reading of congressional intent to reach his decision in the Arizona case.
An example is Kennedy's analysis of the federal law requiring aliens to register with the federal immigration agency and always carry their alien registration documents. Kennedy says that since Congress has legislated on alien registration, states cannot make laws in that area.
But Arizona's SB1070 does not attempted to set up a different or conflicting alien-registration system. Arizona merely said it is now a violation of state law not to have those documents in your possession and police officers have a right to ask to see those documents. The court said only the federal government can enforce that law, not state governments. Kennedy's prohibition goes far beyond the language found in that law.
Advertisement - story continues below
The high court's Arizona ruling gives not only the Obama administration but any future president the discretion to disregard any federal law they choose not to enforce if in the president's unilateral judgment, it might complicate his foreign-policy decisions. This is a bizarre ruling to say the least.
Any doubt about the federal government's true intent with regard to immigration law enforcement was removed the day after the court's Arizona ruling. The Department of Homeland Security announced it is unilaterally canceling the existing 287(g) joint agreements with four Arizona jurisdictions including the state police and Maricopa County Sheriff's office. The federal government no longer will train local law enforcement to identify and detain illegal aliens in the state of Arizona.
What are Americans to do in the face of such behavior by our constitutional guardians? Well, for starters, maybe we ought to stop looking to the Supreme Court as the only guardian of the Constitution. Maybe that duty ultimately rests with the people themselves, not with judges.
The Constitution gives the people the ultimate weapon to protect their liberty: a means of amending the Constitution. That process has been used sparingly, and one of the means of amending the Constitution has never been used at all – the calling of a convention to consider amendments.
Perhaps it is time to stop trusting our elites to defend the Constitution. Maybe it is time we do it ourselves through the means afforded in Article V, a convention of citizen patriots. That would be a difficult and arduous process with no guarantee of success. But what is our alternative?