For good or ill, President Trump has a reputation for bold talk, particularly about the need to enforce U.S. Immigration laws. But when it comes to enacting his plainly stated constitutional duty to “take care that the laws be faithfully executed,” his administration doesn’t match his talk. A case in point involves the laws enacted by the State government of California purporting to forbid State officials and private business people to cooperate with U.S. immigration law enforcement efforts.
Because of his business background, President Trump may mistakenly believe faithful execution means “We’ll sue.” But as the chief executive of the United States, acting by the provisions of a law or laws made in pursuance of the U.S. Constitution, his first duty is to do. He does not have to ask permission or forgiveness of from the judicial branch. Their power is to judge cases brought before them, if and when parties aggrieved by some action or activity of government seek legal redress. The Courts have, in the first instance, no power to usurp the initiative regarding national law enforcement activities. They have no lawful power to forgive breaches of the Constitution. The U.S. Constitution vests put both in the hands of the chief executive.
President Trump’s rhetorical style suggests that he has the forthrightly active temperament executive power requires. But some members of his executive body do not. Attorney General Sessions is acting as if the laws Constitutionally enacted under the authority of the United States, are not the Supreme Law of the Land. He is acting as if the chief executive of the U.S. Government has to defer to this or that State law, unless and until he receives the permission of the judicial branch to do otherwise.
This approach stands the Constitution’s Supremacy Clause (Article VI) on its head. It is gravely harmful to the energetic execution and defense of the Constitution and the laws “made in pursuance thereof.” It also weakens the defense of the nation. Since the case in point involves questions of immigration as well as citizenship, derogation of the supremacy clause threatens both the peaceful, orderly life and the sovereignty of the people of the United States. This damage is immediate. The only way to avoid it is to treat the State laws intended to inflict the damage as null and void.
If this aggrieves the governor and legislators of California, it is for them to seek redress. It is entirely improper for the president of the United States to beg the judicial branch for permission to execute the laws. By impairing the president’s initiative, and attendant responsibility for action, this beggary surrenders executive authority to the judiciary. It impairs the president’s initiative and his attendant responsibility actively to uphold the Constitution and the laws. By “letting ‘I dare not’ wait upon ‘I would’” it forestalls Executive action suited to time and circumstance. But neither will wait while Justices agonize over decisions.
By submitting the executive decisionmaking to prior constraint by federal judges, Mr. Sessions’s wan surrender of executive initiative turns the Supreme Court into a Supreme Executive Magistracy. That form of words barely masks the dangerous combination of powers it involves. This is plainly a path to the kind of tyranny the Framers of the U.S. Constitution intended to foreclose.
The Constitution delegates to the U.S. government jurisdiction over matters pertaining to the security of our nation’s borders, as well as the conduct of our relations with foreign peoples and governments. President Trump ought to put an end to Mr. Session’s legalistic response to Califonia’s constitutionally defiant attempt to retract that delegation of power. No individual State or combination of States has the authority to do so. It must be done, if at all, by the amendment process the Constitution specifies.
Meanwhile, there are laws against interfering with federal officers acting in pursuance of their lawful duty. The U.S. government should unapologetically enforce them. Governors and State legislators cannot be allowed to place themselves above the Supreme Law of the land. The proper response to such intentional, public violation of the Constitution and laws of the United States is to treat the violators as one treats any other citizens of the United States who act to violate or force others to violate, the Constitution and laws of the United States. The proper way to take them to court is to take them to jail. Then, formally arraign them for the crimes of which their public statements and actions plainly prove them guilty.
Gov. Jerry Brown has claimed that President Trump is making war on California. Quite the contrary, it is he and the legislators responsible for the anti-constitutional laws they have together purported to enact, who are guilty of an open attack against the constitutional authority of the government of the United States. Their attack must be arrested, in a way that notifies all the officials and business people their unlawful edicts aim to coerce, that submission to their unlawful abuse of official power will likewise be subject to arrest.
While Gov. Brown and his legislative co-conspirators are sitting in federal jail, Americans sick of seeing our Constitution assaulted and abused will stand up and cheer. That would be Trump change to believe in!
Alan Keyes is a political activist, a prolific writer and a former diplomat.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.