By William Street
Rights of individual states vs. federal authority have been contentious since the founding of this country. “Don’t tread on me,” New Hampshire’s motto aimed at the British, can now be applied to many cities, states and counties opposing Trump’s egregious deportation policies.
Today we see more states, including Oregon, and more counties, hopefully including soon our own Clackamas, and more cities, including several in Oregon, declaring that the Feds cannot come into our turf and apply their policy at the expense of our neighbors.
So it is ironic that Attorney General Jeffrey Beauregard Sessions, whom Coretta Scott King labeled a racist in a letter read to the Senate, is a lifelong believer in states’ rights; he is now attacking those very same rights he spent a lifetime defending.
Certainly the 10th Amendment to the U.S. Constitution, commonly referred to as the States’ Rights Amendment, must be very dear to the heart of this former U.S. Senator from Alabama. Its history as a legal bulwark for states to protect their racial discrimination in the 1960s is well known.
But now it is upside-down for AG Sessions. The 10th is being used to defend sanctuary cities and it is Sessions’ job to strenuously oppose such rambunctiousness against the federal government which he is now sworn to uphold and protect.
Seattle has filed a lawsuit against the Trump administration over an executive order which would strip federal funding from “sanctuary cities.” The suit says it is unconstitutional federal coercion, violating the 10th Amendment. Seattle joins San Francisco and a host of other locales in taking the federal government to court over ICE enforcement protocols.
No question that the attorney general is on dangerous ground here. It turns out not only does Madison’s Federalist Paper No. 46 spell out the rights of states not to comply with enforcing federal laws, but Madison implies it could well be their duty to resist. Repeat: duty to resist! (The Malheur vandals must have read a portion of this paper, although they obviously missed the part about state authority.)
But the history of states refusing to comply with federal regulations and laws also has another side.
The Fugitive Slave Act of 1850 was legally nullified by almost all Northern states based on the 10th Amendment. Nearly every Northern state passed some type of personal liberty law. Provisions varied from state to state, but included denying slave catchers the use of state facilities such as jails, guaranteeing jury trials for accused fugitives, and imposing punitive actions on state or local officials aiding in fugitive slave capture or detention. The basis of these laws was the 5th Amendment; it guarantees due process to all. The authority for these laws was derived from the 10th Amendment.
What Seattle and San Francisco are re-creating is a states’ rights resistance movement similar to the abolitionists of the mid to early 19th century; just cut and paste “slave catchers” with “ICE.” Now replace “fugitive slave rendition” with “ICE detainer warrant,” and you’ve made it to the 21st century.
Except the current Republican administration is ignoring existing federal regulations and policies by now targeting “Dreamers” (children brought here by their parents and educated here) who still have DACA protection against deportation. Our community just last week saw an increase in improper ICE actions against Dreamers.
Energetic Republican threats also face another hurdle; the 1987 Supreme Court ruling of South Dakota v. Dole, written by conservative icon Chief Justice William Rehnquist, where the court decided that funding can be withheld only for the specific initiative in question. This suggests the Trump administration could only withhold funds related to cities assisting with ICE warrants and not an overly broad interpretation of all or perhaps any other legal law enforcement funding.
Perhaps the municipal sanctuary movement, which merely prohibits state and local government officials from cooperating with non-criminal voluntary ICE detainer requests, needs to study a little more history.
After all, who in Oregon or Clackamas County would oppose a revised personal liberty law guaranteeing everyone due process and a trial by a jury of their peers?
William Street, of Oatfield Heights, is a retired trade union organizer active in the County Democratic Party.