First Principles: The Fairweather Federalist

 

I find curious the subject of sanctuary cities; specifically why limited government conservatives support the Trump administration’s attempts to “do something” about them. Those attempts haven’t yielded much other than litigation, and so the Trump administration has started talking about arresting local officials who do not play along. Similar is the Attorney General’s recent decision to rescind the Cole Memo, paving the way for federal prosecutors to begin cracking down on marijuana producers and retailers in states where such a thing is legal.

We have the phenomenon of those conservatives who talk about the virtues of federalism, states’ rights, subsidiarity, and limited government but it all goes right out the window when it comes to Mexicans or pot.  

And so I must ask the question to those fair-weather federalists who see no problem: What is the general principle at work here?

Before you answer, let me propose a test of principle.

If you state a principle of federalism, “The feds can do X, states shouldn’t be able to do Y,” I ask that you test it by applying the Fugitive Slave Act. If you apply the Fugitive Slave Act, and you are comfortable with the results, then you’ve established your principle.  

To those of you who are able to thread that needle, please speak up. State your general principle. I’m eager to hear it.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Nothing to thread here. Control of immigration and borders is properly a Federal task.

    Bringing up slavery is a cheep ploy to link border control and immigration management to being racist. I’d say it was beneath you, but it is not the first time.

    I am amazed Ricochet thinks this is OK. I mean, if this were a liberal site, sure.

     

    • #1
  2. drlorentz Member
    drlorentz
    @drlorentz

    Bryan G. Stephens (View Comment):
    Nothing to thread here. Control of immigration and borders is properly a Federal task.

    This is something that folks should be able to come up with on their own, or so I thought.

    • #2
  3. Randy Webster Member
    Randy Webster
    @RandyWebster

    This is [expletive], Fred.  If border control isn’t a federal responsibility, what is?

    • #3
  4. Fred Cole Member
    Fred Cole
    @FredCole

    Bryan G. Stephens (View Comment):
    Bringing up slavery is a cheep ploy to link border control and immigration management to being racist.

    No.  It’s a good test of any principle of federalism.

    The Fugitive Slave Act is literally the worst example of a federal law of this kind available, so it’s perfect for this test of any principle of federalism.

    If you state a general principle, and apply the Fugitive Slave Act, and you are comfortable with the results, then you’ve established your principle you can stand by.

    • #4
  5. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Randy Webster (View Comment):
    This is [expletive], Fred. If border control isn’t a federal responsibility, what is?

    Well, to be fair, Fred has expressed in previous threads he thinks the principle is that people should be allowed to move freely across all borders.

    • #5
  6. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Randy Webster (View Comment):
    This is [expletive], Fred. If border control isn’t a federal responsibility, what is?

    SSM.

    • #6
  7. Hoyacon Member
    Hoyacon
    @Hoyacon

    The general principle involved with sanctuary cities is that immigration and border control are matters within the constitutional ambit of the federal government.  One cannot “insure domestic tranquility” and “provide for the common defence” while having different standards across jurisdictions.

    I don’t think most federalists have sympathy for the Administration’s approach on pot, so that’s a straw argument.

    • #7
  8. Al Sparks Thatcher
    Al Sparks
    @AlSparks

    Fred Cole: I find curious the subject of sanctuary cities; specifically why limited government conservatives support the Trump administration’s attempts to “do something” about them.

    You make a good point.  As far as I’m concerned, state and local law enforcement work for their respective governments under the aegis of that state’s law.  And constitutionally (I think) they don’t have to enforce federal law, and often don’t.

    On a broader point, a state’s equivalent of an EPA (which have different names from state to state) don’t have to enforce federal law.  And many states aren’t enforcing federal marijuana laws (strictly speaking no state is, but most have their own statues banning marijuana).

    On the other hand, if a state official actively subverts federal law, that’s a different thing.  If a mayor or police chief prohibits an officer under their authority by ordering officers not report a known illegal immigrant to federal authorities, they should be sanctioned for it.

    I don’t know how it turned out, but there was a case recently where a local police officer reported an illegal he encountered, and his superiors wanted to discipline him for, essentially, reporting a law breaker to federal authorities.  Essentially they were saying that, as a citizen, he could not access the federal government for an observed violation of law.

    And remember there are state and federal laws that actually impose a duty to report, the biggest example are doctors with regards to suspected child abuse.  Maybe that needs to be revisited if there’s no duty to report regarding immigration (or escaped slaves).

    Fred Cole: Before you answer, let me propose a test of principle.

    Nah.  I think I explained it pretty well without going buy a particular “system”.  That was clever trying to load the argument by comparing illegal immigrants with escaped slaves.  I don’t accept the premise.

    • #8
  9. Randy Webster Member
    Randy Webster
    @RandyWebster

    Bryan G. Stephens (View Comment):

    Randy Webster (View Comment):
    This is [expletive], Fred. If border control isn’t a federal responsibility, what is?

    Well, to be fair, Fred has expressed in previous threads he thinks the principle is that people should be allowed to move freely across all borders.

    Thanks, Bryan.  I’d forgotten that.

    • #9
  10. Brian Watt Member
    Brian Watt
    @BrianWatt

    I believe the sanctuary cities (states) issue is more complex from a constitutional perspective, than you paint it out to be. California and the State of Washington are now threatening, with the force of their respective state laws, to prosecute and possibly fine and incarcerate citizens who aid ICE agents in the identification and capture of illegal aliens. Please note, that these citizens, per the state laws, can be private citizens and not members of either California or Washington State law enforcement agencies. This sets up a conflict for American citizens who feel compelled to aid the feds in enforcing federal immigration law and creates a condition that conflicts with their rights as Americans versus their status as law abiding citizens of a given state. That appears to be a challenge to the supremacy clause of the Constitution and I don’t think it’s beyond the realm of possibility that DOJ may at some point challenge the California and Washington statutes in federal court or fast track a case to SCOTUS for consideration and resolution. I should also note that law enforcement officials in both states take an oath to allegiance to the US Constitution in addition to their state constitutions. To the degree, that these officials are penalized, fined or incarcerated when they individually volunteer information to the feds in their allegiance to the US Constitution, then this also creates a conflict and has the potential of being tested.

    • #10
  11. Arizona Patriot Member
    Arizona Patriot
    @ArizonaPatriot

    Fred, I’m worried about you.  Your posts seem to be becoming increasingly silly.  Maybe you’re just trying to be funny and provocative.  I’ll try to respond in good faith.

    Federalism and sanctuary cities:  As was already pointed out by Randy above, immigration is plainly a federal concern.  It’s in the Constitution itself.  Sanctuary cities are engaging in something close to aiding and abetting criminal activity.  Their entire purpose seems to be to thwart the enforcement of federal law.  It is plainly the sanctuary cities that are failing to abide by the rules of federalism and the supremacy clause.

    Federalism and marijuana:  There are two issues here.

    First, while there may be a good federalism-based argument for allowing state control over the issue, that is not the law that we have.  What we have are a number of federal prohibitions on the possession and sale of marijuana.  The principle of the rule of law requires that such law be enforced, even if you don’t like it.

    Second, there is room for disagreement about whether the principle of federalism should, or should not, apply to marijuana.  I don’t view federalism as a universal principle.  Inherent in the concept is that some things should be handled at the federal level, and other things handled at the state level.  Some of this may be easy (defense, immigration), some of it may be hard (auto safety standards, mortgage law).  The pure federalist view about marijuana, in particular, seems naive to me, as it ignores the obvious practical problem of smuggling of marijuana from a state where it is legal, to a state where it is not.

    I really don’t understand what you mean by applying the “Fugitive Slave Law.”

     

    • #11
  12. danok1 Member
    danok1
    @danok1

    I was going to comment on the immigration portion of Fred’s question, but @alsparks laid out the exact argument I had in mind.

    As far as marijuana is concerned, the Constitution states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    AFAIK, the federal drug laws have not been found unconstitutional. They are thus the supreme “Law of the Land.” If the senators from Colorado, for example, have a problem with the US Attorney General enforcing Federal law, they should work to change the law, not try to convince the AG to ignore Federal law. Senator Gardner in particular seems to forget he’s a member of a Federal legislative body.

    • #12
  13. Ed G. Member
    Ed G.
    @EdG

    Borders and citizenship are explicitly a federal responsibility under the Constitution.

    Aside from interstate commerce aspects of drug trade, I agree that feds shouldn’t be regulating drugs. It should be a state issue.

    Generally, though, whether the law should be enforced is a lower order question than whether the law should exist. If the people, through their representatives and Constitutional institutions, think it should exist then it’s pretty clear that the law should be enforced and any dissenters should get busy changing minds and organizing politically. The general principle is representative government.

    Slavery is different from immigration. Obviously. In about a hundred different ways. Primarily, the difference was forcing people to do things when they had no say in the process or rights. No one is forcing immigrants, legal or illegal, to do anything.

    Taxation isn’t theft. Representative government like ours isn’t coercion. Nations are physical as well as notional entities. I know, you disagree on all of these. Well, that’s the entire problem and discussions about lower order issues will be unproductive. Not that any discussions with you of these higher order issues has been productive either.

    • #13
  14. Ed G. Member
    Ed G.
    @EdG

    Hoyacon (View Comment):
    I don’t think most federalists have sympathy for the Administration’s approach on pot,

    I do. If you wanna change the law then change the law. Otherwise, I’ve always had a problem with the current approach where we’re just going to act as if there is no law governing this issue.

    • #14
  15. Al Sparks Thatcher
    Al Sparks
    @AlSparks

    danok1 (View Comment):
    As far as marijuana is concerned, the Constitution states

    The Supremes were wrong on that one.  If it took a constitutional amendment (later repealed with another constitutional amendment) for the federal government to outlaw alcohol within a state, why doesn’t it take a constitutional amendment to allow the federal government to do the same with other drugs?

    • #15
  16. Hypatia Member
    Hypatia
    @Hypatia

    I see zero comparison.  Slavery was legal in some states, not in others.  Whereas sneaking into and remaining in our country unauthorized is and has been ab initio. illegal throughout the nation, under federal law.  Further, any commerce with foreign nations is the US Congress’ exclusive province. US Const. I, sec 8.   And ” “commerce” does not only mean buying and selling.

    So If you’re trying to insult us by propounding that  if we oppose sanctuary cities,  then we support ( or would have supported) the Fugitive Slave  Acts ( there were two)

    that is spurious.

    • #16
  17. Hoyacon Member
    Hoyacon
    @Hoyacon

    Ed G. (View Comment):

    Hoyacon (View Comment):
    I don’t think most federalists have sympathy for the Administration’s approach on pot,

    I do. If you wanna change the law then change the law. Otherwise, I’ve always had a problem with the current approach where we’re just going to act as if there is no law governing this issue.

    I’d frame the federalism debate as to whether there should be federal control of the issue.  That’s admittedly more theoretical.  However, it is difficult for me to endorse enforcement of a law, the enactment of which seems to be beyond a reasonable reach of federal authority.

     

    • #17
  18. GFHandle Member
    GFHandle
    @GFHandle

    So Federalism equals Nullification?

    Not in my lexicon.

    • #18
  19. Fred Cole Member
    Fred Cole
    @FredCole

    Arizona Patriot (View Comment):
    First, while there may be a good federalism-based argument for allowing state control over the issue, that is not the law that we have. What we have are a number of federal prohibitions on the possession and sale of marijuana. The principle of the rule of law requires that such law be enforced, even if you don’t like it.

    I’m taking a shortcut here by only engaging part of this argument, because I’m cooking.

    So does the principle you espoused in the last sentence also apply to the Fugitive Slave Act?

    • #19
  20. Hypatia Member
    Hypatia
    @Hypatia

    Arizona Patriot (View Comment):
    Fred, I’m worried about you. Your posts seem to be becoming increasingly silly. Maybe you’re just trying to be funny and provocative. I’ll try to respond in good faith.

    Federalism and sanctuary cities: As was already pointed out by Randy above, immigration is plainly a federal concern. It’s in the Constitution itself. Sanctuary cities are engaging in something close to aiding and abetting criminal activity. Their entire purpose seems to be to thwart the enforcement of federal law. It is plainly the sanctuary cities that are failing to abide by the rules of federalism and the supremacy clause.

    Federalism and marijuana: There are two issues here.

    First, while there may be a good federalism-based argument for allowing state control over the issue, that is not the law that we have. What we have are a number of federal prohibitions on the possession and sale of marijuana. The principle of the rule of law requires that such law be enforced, even if you don’t like it.

    Second, there is room for disagreement about whether the principle of federalism should, or should not, apply to marijuana. I don’t view federalism as a universal principle. Inherent in the concept is that some things should be handled at the federal level, and other things handled at the state level. Some of this may be easy (defense, immigration), some of it may be hard (auto safety standards, mortgage law). The pure federalist view about marijuana, in particular, seems naive to me, as it ignores the obvious practical problem of smuggling of marijuana from a state where it is legal, to a state where it is not.

    I really don’t understand what you mean by applying the “Fugitive Slave Law.”

    Oh come on @arizonapatriot, you do understand!   He’s telling us that. if you oppose sanctuary cities, you are that nineteenth century evil person who would clap a fugitive slave in irons and turn him over to the constabulary to be shipped south again.

    Let me just point out that this is not the Berlin Wall.  Mexico is a neighboring democracy. And it’s had a lower unemployment rate than ours, until Trumps term.  If people are sent back there, they are not being sent back to involuntary servitude.  The worst that will happen is, they’ll get a job for less money, and have to pay tax on it to the Mexican government.

    Also, they’re not being sent back to any kind of persecution.  I mean, there are infrastructure projects in Mexico paid for by grants matching remittances from money made in our country. These people are heroes!  In Mexican elections, both candidiates usually make encouraging and facilitatiing illegal entry into and illegal employment  in our country  part of their platform.

     

    • #20
  21. DocJay Member
    DocJay
    @DocJay

    Two extremely different issues.

    I’m not happy with the pot crackdown by feds.   States issue.

    Close the borders for goodness sake.  Fed issue

    Big needle hole there Fred.

    • #21
  22. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    So if a state passes a law saying it’s okay to discriminate on the basis of race, the feds can’t come in and enforce the civil rights act?

    • #22
  23. Fred Cole Member
    Fred Cole
    @FredCole

    Hypatia (View Comment):
    Oh come on @arizonapatriot, you do understand!  He’s telling us that. if you oppose sanctuary cities, you are that nineteenth century evil person who would clap a fugitive slave in irons and turn him over to the constabulary to be shipped south again.

    Excuse me, but how does this further the conversation?

    • #23
  24. Skyler Coolidge
    Skyler
    @Skyler

    The real solution for the problems people perceive is not to put up a wall or restrict immigration.  The solution is to stop providing benefits to people who come here illegally.  No welfare, no medicare, no social security, no minimum wage, no free schools.  Get rid of the incentive to be here and they’ll stop coming here or at least won’t be a burden.

    But we’d rather go with the emotional non-fix of building a stupid wall that will impede animal migration and won’t stop the bad people, but will stop the somewhat honest people.

    Walls don’t work without mine fields or machine guns.  Machine guns work both ways.  It’s time to rethink the wall.

    • #24
  25. Ed G. Member
    Ed G.
    @EdG

    Hoyacon (View Comment):
    I’d frame the federalism debate as to whether there should be federal control of the issue.

    As I say, that’s reasonable. But then do the work to change the law. We can’t simply start ignoring laws because we don’t think they should be laws. When it comes to the administration’s approach: I say they have a duty to enforce the law.

    • #25
  26. Dan Hanson Thatcher
    Dan Hanson
    @DanHanson

    Fred Cole (View Comment):

    Arizona Patriot (View Comment):
    First, while there may be a good federalism-based argument for allowing state control over the issue, that is not the law that we have. What we have are a number of federal prohibitions on the possession and sale of marijuana. The principle of the rule of law requires that such law be enforced, even if you don’t like it.

    I’m taking a shortcut here by only engaging part of this argument, because I’m cooking.

    So does the principle you espoused in the last sentence also apply to the Fugitive Slave Act?

    You can oppose laws for lots of reasons.  You can engage in civil disobedience for lots of reasons.

    Let me turn it around on you, Fred.  Would you oppose individual states overriding the federal government and making abortion illegal?   If so,  how do you justify that if you do not also oppose the states having overridden the fugitive slave act?  Surely you can’t be for one and not the other, right?

     

    Or maybe the use of extreme comparisons and ‘gotcha’ tricks is a very poor substitute for careful, reasoned debate.  Everyone likes to go for the ‘slam-dunk’ point that they think just ‘destroyed’ their opposition,  but almost always such tactics require engaging in numerous logical fallacies and tortured comparisons.   A much better way to go is to have calm, reasoned discussion.  In my opinion.

    • #26
  27. Ed G. Member
    Ed G.
    @EdG

    Miffed White Male (View Comment):
    So if a state passes a law saying it’s okay to discriminate on the basis of race, the feds can’t come in and enforce the civil rights act?

    Obviously. Because that principle is on the “right side” of the Fugitive Slave Act test.

    Just to be safe, though, we’d better ditch our government altogether and rely on anarchocapitalism. It’s the only way to be sure.

    • #27
  28. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Hoyacon (View Comment):
    The general principle involved with sanctuary cities is that immigration and border control are matters within the constitutional ambit of the federal government. One cannot “insure domestic tranquility” and “provide for the common defence” while having different standards across jurisdictions.

    I don’t think most federalists have sympathy for the Administration’s approach on pot, so that’s a straw argument.

    Do you mean to say here that most federalists don’t believe in enforcing federal law when states disagree?

    • #28
  29. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Fred Cole (View Comment):

    Hypatia (View Comment):
    Oh come on @arizonapatriot, you do understand! He’s telling us that. if you oppose sanctuary cities, you are that nineteenth century evil person who would clap a fugitive slave in irons and turn him over to the constabulary to be shipped south again.

    Excuse me, but how does this further the conversation?

    Didn’t you introduce The Fugitive Slave Act as an important part of the conversation?  Maybe you should detail exactly how it is supposed to be used for responding.

    • #29
  30. Hypatia Member
    Hypatia
    @Hypatia

    Fred Cole (View Comment):

    Hypatia (View Comment):
    Oh come on @arizonapatriot, you do understand! He’s telling us that. if you oppose sanctuary cities, you are that nineteenth century evil person who would clap a fugitive slave in irons and turn him over to the constabulary to be shipped south again.

    Excuse me, but how does this further the conversation?

    Begging your pardon ,but in what way does my comment seem to you to be irrelevant to the conversation?

    What do you mean by “further”?

    For that matter, define “conversation”.

    I can keep this up all night, if you’re game.

    • #30

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