The Obama administration claims that its legal challenge to
Arizona’s new immigration-enforcement law is motivated entirely
by the administration’s strict adherence to the Constitution.
(Don’t laugh.)
Arizona’s law is an encroachment on the federal
government’s rightful jurisdiction, the administration argues. As
Attorney General Eric Holder said, “It is the responsibility of
the federal government to decide immigration policy.”
Let’s ignore the obvious rebuttal that the Arizona law
actually doesn’t supersede or even contradict federal law, but
rather allows local and state law enforcement officers to assist
the federal government in upholding its own policies. It isn’t an
immigration law, it is an immigration-enforcement law. Let’s
instead examine the claim that the Obama administration must act
because it cannot tolerate a state asserting authority rightfully
reserved for Washington.
In October, the Obama administration responded to the
multiplication of medical marijuana laws throughout the fruited
plain by abdicating its authority to enforce the federal law that
criminalizes the use of marijuana.
“It will not be a priority to use federal resources to
prosecute patients with serious illnesses or their caregivers who
are complying with state laws on medical marijuana,” Holder said
at the time.
White House Press Secretary Robert Gibbs refused to say
“what states should do” about medical marijuana.
With multiple states defying Washington’s authority to
regulate marijuana use, the Obama administration stepped back,
allowing state laws on the medical use of marijuana to become the
supreme laws governing that behavior in the country. The
Supremacy Clause be damned; Obama was not going to assert
Washington’s authority on that issue.
On June 30 of last year, the Obama administration granted
California and 13 other states a waiver to set stricter
greenhouse gas auto emissions standards than were allowed under
federal law. The Bush administration had denied the waiver.
Although the EPA press release announcing the decision asserted
that it was based on “science,” it was clearly a political
move.
Obama was in office less than a week when he ordered the
EPA to reconsider the Bush administration’s waiver denial. As the
New York Times put it at the time, “The directive makes
good on an Obama campaign pledge and signifies a sharp reversal
of Bush administration policy. Granting California and the other
states the right to regulate tailpipe emissions would be one of
the most emphatic actions Mr. Obama could take to quickly put his
stamp on environmental policy.”
The Times went on:
While it stops short of flatly ordering the Bush decision
reversed, the agency’s regulators are now widely expected to do
so after completing a formal review process.
Once they act, automobile manufacturers will quickly have
to retool to begin producing and selling cars and trucks that
get higher mileage than the national standard, and on a faster
phase-in schedule. The auto companies have lobbied hard against
the regulations and challenged them in court.
One of the automakers’ arguments against granting the
waiver was that it could result in 50 different emissions
policies with which manufacturers would have to comply.
“William L. Kovacs, a vice president for environmental and
regulatory issues at the United States Chamber of Commerce, said
free-for-all federalism was bad for business and would lead to a
‘patchwork of laws impacting a troubled industry,’” the New
York Times reported in January of 2009.
That is the same argument Attorney General Eric Holder made
against Arizona’s immigration law. He even employed the same word
— “patchwork” — Kovacs did.
“Setting immigration policy and enforcing
immigration laws is a national responsibility,” Holder said in
the press release announcing the lawsuit. “Seeking to address the
issue through a patchwork of state laws will only create more
problems than it solves.
The Obama administration is worried that allowing local
police to arrest illegal aliens will somehow overburden federal
law enforcement officers, but it isn’t concerned that allowing
people to grow and smoke marijuana will overburden federal drug
enforcement officers? It is worried about a patchwork of
immigration enforcement laws (as opposed to immigration laws),
but not a patchwork of environmental regulations that directly
affect interstate commerce?
Obama isn’t the slightest bit concerned about a “patchwork”
of state laws that contradict and supersede federal authority. He
is reaching for a legal argument to justify his desire to undo
the Arizona law, which he simply dislikes.
A little more than a week after Obama was sworn in as
president, the New York Times had a story declaring that
the new president had a new view of federalism. Dubbed
“progressive federalism,” this new view asserted that Washington
should not enforce its regulatory authority in all areas, but
should treat its authority as “a floor and not a ceiling.”
That is, Washington should set tough regulatory standards,
then let states pass even more stringent regulations that the
left is unable to get through Congress. The selective approach is
designed to replace uniformity with ad-hoc approval of liberal
policies and disapproval of non-liberal ones. That is exactly
what the Obama administration is doing.
