States’ Rights Arguments Aren’t Just for Segregationists

In 1798, the Federalist Congress passed a xenophobic Alien Act authorizing the president discretion to deport noncitizens he deemed dangerous because they might be allied with our quasi-enemy, France. The companion Sedition Act empowered the federal government to prosecute publishers and journalists if they published what Federalist prosecutors regarded as fake news — Republican criticism of Federalist policies. In response, the states of Virginia and Kentucky adopted resolutions, secretly drafted by James Madison and Thomas Jefferson, respectively, denouncing those acts as monstrous and unconstitutional.

Constitutional law has developed since then to clarify the boundaries of national authority and local autonomy. States cannot, despite Jefferson’s antifederalist wishes, declare a federal law to be unconstitutional and void. That job is assigned to the courts as part of the Constitution’s scheme of horizontal checks and balances among the president, the Congress, and the judiciary.

The April 25 federal court order restraining the federal government from punishing “sanctuary jurisdictions” for declining to help enforce federal immigration policy has been justly hailed as an example of the judiciary’s role in enforcing the Constitution. But it also shows that the Constitution’s vertical checks and balances — federalism — play a critical role both in protecting local autonomy and in containing federal overreach.

Constitutional federalism has two components. On the one hand, the Supremacy Clause requires state and local jurisdictions to allow federal officials to do their jobs — whether their job is enforcing desegregation or implementing federal immigration policy. But the 10th Amendment, on the other hand, gives state and local governments the right to refuse to help enforce federal regulatory programs against their own residents.

Application of these neutral principles does not always lead to ideologically consistent results.

Montana Sheriff Jay Printz did not want to help enforce the 1993 Brady Handgun Violence Prevention Act, which told local officials to cooperate by conducting background checks on prospective handgun purchasers until a federal system was developed. The Supreme Court ruled in 1997 that Sheriff Printz had his own job to do, defined and paid for by the people in his jurisdiction, and so he could not be commandeered to help implement federal gun control law. Full enforcement of the Brady Act had to wait.

In the fall of 2001, the FBI sent local law enforcement officials a list of some 5,000 Arab and Muslim men the FBI wanted to interview about terrorism, along with a list of questions to be asked. Most local officials agreed to cooperate by conducting the interviews; others, like Detroit Police Chief Charles Wilson, did not. Wilson had his own job to do and believed his local agency’s participation in the FBI interviews would interfere with his mission to serve his community, which included a large Arab American and American Muslim population.

The principle from the Printz case applied there, too: Coercing Detroit law enforcement officials to assist the FBI would violate the 10th Amendment. Thus, federalism served as a check on the FBI’s interrogation power, even where litigation about constitutional rights did not — by limiting federal manpower to agents paid by the federal government, plus local volunteers.

Federalism plays a critical role both in protecting local autonomy and in containing federal overreach.

Today, the same principles apply to the Trump administration’s radical deportation program. The White House is pressuring state and local governments to “cooperate” by helping to apprehend people who might be deportable and by detaining people on behalf of the federal government — adding enormous manpower to the federal deportation mill on the cheap, without getting Congress to approve an increase in the budget for immigration enforcement.

The pressure also comes with a threat attached. If local jurisdictions don’t cooperate, according to Attorney General Jeff Sessions, the federal government will yank portions of their federal funding. Ruling on a challenge by Santa Clara and San Francisco, the federal court in Northern California rightly found the Trump administration’s threat unconstitutional. State and local jurisdictions have no legal obligation under existing statutes to assist deportation efforts in either of these ways — and have a right under the 10th Amendment to refuse to do so.

Attorney General Sessions’s demands are not backed by statutory authorization. Congress has not commanded state and local officials to submit to ICE detainers — requests that local jail officials continue to detain people for up to 48 hours or even longer after they are entitled to be released. The detainers are only requests. And even if Congress wanted to adopt a policy making compliance with detainers mandatory, such a requirement would violate more than the 10th Amendment. A number of courts around the country have ruled that arrests based on immigration detainers violate the Fourth Amendment’s ban on unreasonable seizures.

Similarly, Congress has not decided to impose immigration-related conditions on federal funds, despite Attorney General Sessions’ threats. And any such congressional limits would then have to be measured against the 10th Amendment.

But even beyond what is constitutionally permissible, pressuring localities to prioritize deportation of valued members of their communities is a terrible idea.

Like California, New York City and many other localities have concluded that their law enforcement agents cannot effectively do their own job of keeping the peace if they are simultaneously trying to enforce federal immigration law. Immigrants fearful of being deported will be afraid to engage with officers by reporting crimes committed against themselves or others, agreeing to serve as witnesses, going to a court or hospital, or taking their children to school. That is the kind of local autonomy the 10th Amendment respects.

Conversely, the urgency of the federal deportation campaign has been greatly exaggerated. New York City is not plagued with crime caused by immigrants. In fact, New York reports that it is the safest big city in the country, with crime at record lows largely because city policies encourage cooperation between the NYPD and immigrant communities. And according to studies, immigrants commit fewer crimes on the average than nonimmigrants.

It may seem ironic that it is the concept of states’ rights that gives California and other states, cities, and counties the power to resist federal attempts to conscript their employees into President Trump’s deportation machine. After all, half a century ago “states’ rights” was the rallying cry for segregationists defending discriminatory laws and practices the ACLU was challenging.

But it is true today, as it was then, that the Supremacy Clause prohibits states from interfering with federal enforcement of locally unpopular laws — whether civil rights laws or immigration laws — if those laws are constitutional. And it is as true today, as it was in 1798, that state and local dissent can help to temper federal overreaching.

The Virginia and Kentucky Resolutions turned out to be part of a continuing national dialogue that led to the demise of the Sedition Act, even though Federalist judges consistently ruled that the law was constitutional.

The resistance of federalism can help to keep us in balance, just as Madison and Jefferson intended.

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H Greeley

This reading of the 10th Amendment is nonsensical. Is this the quality of the ACLU's legal reasoning today? The 10th Amendment says and implies nothing all about 'residents' of States being possibly exempt from federal authority. It simply says powers not given to the federal gov't are presumed retained by the States and/or the people.


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Maybe the biggest constitutional crisis for the ACLU today is that the U.S. Supreme Court has essentially "amended", not interpreted, the letter & spirit of the U.S. Constitution - without a constitutional amendment. The voters have to be involved in the amending the U.S. Constitution and Bill of Rights. The duty of the U.S. Supreme Court is to follow the letter & spirit of the U.S. Constitution applied to modern times.

For example: high court rulings from the 1960's and 1970's, like "Terry v. Ohio", fundamentally changed the meaning of the 4th Amendment in the so-called "War on Drugs". Rulings since then have essentially legalized 18th Century style "General Warrants" - what the 4th Amendment was designed to minimize and prevent. The 4th Amendment and other amendments have been amended without going through the proper legal process.

In the excellent article above, it essentially states that the FBI blacklisted and defamed 5000 Muslim men without probable cause, without material evidence and likely without the presumption of innocence. When a federal agency shares a list of 5000 names, those individuals are under "lifetime" suspicion and blacklisting by local and state officials.

Everyone should read Article VI of the U.S, Constitution word for word - the FBI and all federal officials are required to follow the U.S. Constitution also.


That's happening right now in Virginia, the U.S. Supreme Court amended "Eminent Domain" without a constitutional amendment. Virginia's largest private monopoly that controls it's own government regulators (according to the Washington Post) is trying to seize private property and blow off the top of mountains. For all intents and purposes, this monopoly is essentially acting as a government entity, but not bound by the Bill of Rights eminent domain clause.

It's gotten so corrupt in Virginia, that many politicians running for Governor and the state legislature are refusing to take campaign contributions from this quasi-governing entity. Such a monopoly is bad for democracy and the rule of law in Virginia. This would also big a great case for the ACLU to litigate, since it also encompasses the "Citizens United" ruling.

State vs Federal

The argument of "states rights" become an issue when popular movements exists in one state or a few states. The title of the article points out segregation as a topic of states rights. Of course the constitutional rights of all humans trumps any state law. However, the argument of sovereignty is used for other issues as well. LGBTQ rights, weed, healthcare and almost any other populist agenda.

So where do States rights overcome the constitution? They don't, the constitution is supreme law and interpreted by the Supreme Court as well as used by congress to pass laws.

My point is States have no rights! The federal government is firmly in charge and executes its will whenever it pleases. The DEA, ATF, and FBI are raiding weed crops and stores all across the "legal" states. So is their really States rights in any situation? No all states must comply with federal law. This is our best option as a peaceful society to maintain a relatively free and fair Union. Otherwise we WILL become a weak fractured conglomeration of segregated peoples with thousands of "set of laws" each diffent and competeing. War is what follows to force one group to follow the others "laws".


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At whatever point laws aren't unequivocally stipulated in the American Constitution (and with regards to established law, nothing is express), each state exploits the squirm space to make and keep up its own particular legitimate code. In spite of the fact that this gives expresses a great deal of space in regions, insurances are taken to guarantee that the laws most straightforwardly influencing individuals have a specific level of institutionalization. Enter the Equal Protection Clause of the Fourteenth Amendment.


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At whatever point laws aren't unequivocally stipulated in the American Constitution (and with respect to set up law, nothing is express), each state misuses the squirm space to make and keep up its own particular/specific real code. Regardless of the way that this gives communicates a lot of space in locales, protections are taken to ensure that the laws most clearly affecting people have a particular level of regulation.


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