Conservative jurisprudence will stymie Trump’s immigration order
The day after the election of Donald Trump, I heard news reports around the state of panicked schoolchildren. These sons and daughters of undocumented immigrants believed mistakenly that with the rise of Trump came the imminent deportation of their parents. It was awful to hear.
I felt a personal failing. We in the media are charged with informing the citizenry so the citizenry can chose the best leader. We failed at that, clearly, but we also failed to explain how government works. What these panicked youth did not understand is that the president is not a king.
I suspect his supporters would not mind the coronation of King Donald. Many certainly have no qualms about Trump’s recent executive orders, after years of excoriating former President Obama for his executive orders, calling them “unconstitutional” at least or “treasonous” at worst.
They were neither, and the Republicans knew it. They filed law suit after law suit against Obama, and were very successful in blocking many of his orders. If the president were a king, Republicans could have done nothing. But presidents are not kings. They are subject to law. Republican obstructionism was a huge success. Students of undocumented parents can take some comfort in that.
This is not to say they should not be worried. We should all be worried. But Trump’s recent executive order to defund so-called sanctuary cities if they do not cooperate with federal immigration authorities is nothing to panic about — not yet. The law is your side. So is our structure of government.
The founding fathers understood kings and concentrated power. That’s why they created a form of government in which power is widely distributed. After outlining what the federal government can and can’t do, the founders left the rest to the states by saying, in so many words, that “anything not said here is left to the states to decide.”
Thus was born the principle of state sovereignty.
Now, state sovereignty is something we usually hear from conservatives who do not want a particular liberal policy monkeying around with the social order of their respective states, usually in the American South. If a federal policy benefits black people, for instance, the chances are good that a conservative will bring up state sovereignty to delay, undermine, erode, or block that federal policy.
Because conservatives have historically opposed federal action, and progressives have historically favored federal action, progressives have had few occasions to exploit state sovereignty to achieve their goals. But Trump is not a conservative. He’s a nationalist in the mold of Andrew Jackson. Federal power is okie-dokie. His problem is that federal authorities can’t be everywhere all the time. They need the help of state law enforcement authorities to achieve Trump’s goals, but states don’t have to help. Why?
Immigration is the president’s problem.
President Trump is trying to get around this by vowing to cut federal funding to states, and especially so-called sanctuary cities like New Haven and Hartford, that do not comply with his wishes. But that’s not going to solve his problem.
Not only does Trump have to operate according to the rule of law, not only does he have to operate within the confines of our federalist structure of government, he has to deal with 40-plus years of conservative jurisprudence — specifically legal precedents established by a Republican-controlled Supreme Court that give the states the benefit of the doubt.
The most recent precedent regarding funding was the Supreme Count ruling over the Affordable Care Act, or Obamacare. The law gave the federal government the power to withhold funding if states did not expand their Medicaid programs to cover more poor people. The court found that cutting off funding would be coercive. Therefore, cutting off funding would be an infringement on state sovereignty.
In other words, a no-no.
The rule of law, our structure of government, and conservative jurisprudence stopped Obama.
There’s no reason to think it won’t stop Trump, too.
John Stoehr is a lecturer in political science at Yale and a New Haven resident.
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