The confederacy has been reborn, this time in Yankee country.
There is no area of law more within the province of congressional authority than protecting national sovereignty from those who come here against the national will. A state has the right to enforce its own sovereignty but cannot invite in others at the expense of the sovereignty of the entire union. Yet, Massachusetts’ top court is now ordering the Bay State to ignore federal detainer requests, even for criminal aliens.
On Monday, the Supreme Judicial Court of Massachusetts ruled that state law prohibits local law enforcement from honoring ICE’s requests to detain criminals for 48 hours if there is probable cause an individual is an illegal immigrant. This practice has enabled federal authorities to apprehend any criminal alien without having them prematurely released into the population.
The state court’s ruling blocking this practice makes the Bay State a de facto sanctuary jurisdiction because there is no way federal authorities can catch all these criminals when they are immediately released after being arrested for endless crimes.
Remember, in almost every case where an illegal is arrested, they were never apprehended for simply being an illegal alien — they have usually committed an additional crime. These are not your lovely housekeepers Democrats nostalgically speak of when stereotyping illegal immigrants. Yet, now they will disappear back into communities within the state.
By definition, illegal aliens with no documentation are the consummate flight risk, which is exactly why the relevant statute, 8 U.S.C. § 1357(a)(2), calls upon ICE to apprehend illegal aliens without a warrant when the suspected alien “is likely to escape before a warrant can be obtained for his arrest.”
Moreover, 8 U.S.C. 1373 forces states to cooperate with federal immigration authorities. Holding criminal aliens for a minimal period of time is the basic act needed to ensure public safety. Yet, state judges are now asserting their definition of state law trumps federal law, even when the federal government has full control over immigration.
There is a very powerful lesson to learn from the conduct of blue-state government. Blue states are now refusing to follow federal statutes duly passed by Congress, such as immigration law, or abide by fundamental rights that are clearly enumerated in the Bill of Rights, such as the right to bear arms. All Democrats in blue states, from the legislature and attorney general to the governor and courts, are in full agreement and work together to thwart federal law or the Constitution.
Yet, when conservatives in red states seek to follow legitimate state law in an area of law where the Constitution grants states full authority — such as regulating abortion, defining marriage, setting election law, or drawing districts — they are completely overridden by the federal courts. But most Republicans in these states do nothing to fight back.
In Alabama, Judge Roy Moore did the same thing the Massachusetts court did with immigration … except there was one difference: States have plenary power over marriage and Justice Anthony Kennedy said so just two years prior in the Windsor opinion. Furthermore, the Defense of Marriage Act is federal statute anyway. Moore was following state and federal law, as well as the Constitution. Yet, nobody in the state stood with him.
Contrast that dynamic to what is unfolding in blue states and you will see that Democrats know how to engage in civil disobedience. Unlike marriage, immigration is almost exclusively within the province of the federal government; state courts are overriding federal statute. Yet, all the Democrats in charge of the blue states circle the wagons behind this act of nullification.
Despite the Heller decision, blue states are continuing to block the Second Amendment. In those states, it is those individuals who actually follow Heller who will be in trouble with the authorities — not the judges and legislators who block Heller. On the other hand, after the Obergefell ruling, which, unlike Heller, created a right non-existent in the Constitution and one which defies natural law, red states collapsed and punished people like Roy Moore who stood for the rule of law.
Whereas laws duly passed by the elected branch of the federal government, even on issues clearly within the federal domain, don’t seem to thwart blue-state nullification, decisions from the unelected branch of government have been allowed to overrule red-state policies, even over issues manifestly within the province of the state.
When North Carolina’s Supreme Court upheld the state’s redistricting maps and election integrity laws, their ruling was ignored because the federal courts stepped in and mandated same-day registration, new election districts, and voting without photo ID. Ironically, Monday, on the same day the top Massachusetts court nullified federal immigration law, they mandated that the state accept same-day registration for voting.
Are you noticing a pattern? In blue states, the state government is king and the state courts work to buttress their values, even when they violate federal statute or the Constitution. In red states, the Republican politicians do nothing to uphold federalism, even when they are the ones following statute and the Constitution.
The minute a man like Roy Moore abides by what we all say we believe in, it’s hard to find a single Republican backing him up, including the state’s former attorney general, Luther Strange, now running for Senate.
Recently, rather than promoting a relentlessly positive agenda, much of the “conservative” movement’s ethos has been reduced to the excuse of “but the Democrats are worse.” Indeed, there is something we can learn from Democrats after all.
If they are willing to break federal laws and violate the Constitution to protect their agenda, shouldn’t we follow the Constitution to protect our [supposed] agenda, even if that means breaking outside the existing paradigm?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.