Judge Orrick’s Nullification of the Rule of Law

Back in March 2016, the Obama Administration threatened to withhold federal education dollars from the state of North Carolina if the state did not repeal their now famous bathroom bill, otherwise known as HB2. Obama’s Department of Justice thought it was a civil rights issue if a state intervened to prevent men from entering public restrooms designated for women and vice versa. Regardless of the what one thinks about HB2, Obama’s DOJ built their case on the premise that a state may not violate federal law.

What a difference a year makes.

The Left, and the Democrats have now come full circle. Of course, Obama did not really believe in the rule of law—he believes only in what he deems is “progress”—and invoked the “Supreme Law of the Land” only because he judged it could be massaged to advance his leftist goals.

align=”right” Behind Orrick’s weak legal analysis and premature ruling on an action that has not yet been implemented, lies a pernicious ideology remarkably similar in principle to the one moving the slave power before the Civil War.

This week, a grafting, Obama appointed district court judge, William H. Orrick, delivered a poorly written and lawless decision that—in essence—invokes the long discredited principle of nullification. Historically, nullification was the belief that a state could nullify, or interpose itself between its own laws and any federal law it deems unconstitutional. In this instance, we have cities that, by and and large, have been controlled by the Left for decades trying to establish a basis for so called “sanctuary cities.” In truth they are are seeking nothing so much as a right to nullify federal laws they do not like.

Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” addresses a problem whereby certain cities are purposely and “willfully violating Federal law in an attempt to shield aliens from removal from the United States.” Those cities are also shielding criminals from deportation and prosecution. According to this order, cities that persist in this lawlessness, will have “Federal funds” removed from them “except as mandated by law.” In other words, unless the government had to release funds as mandated by law, the executive office may deny grants, or future grants, to localities who are harboring criminals and thwarting investigators in their pursuit of justice.

There are some on the right who claim that this ruling is much ado about nothing. As far as this argument goes, it’s not wrong. But it’s not the whole story, either. Behind Orrick’s weak legal analysis and premature ruling on an action that has not yet been implemented, lies a pernicious ideology remarkably similar in principle to the one moving the slave power before the Civil War.

The court admits—as do the cities of San Francisco and Santa Clara—that the cities have a “well-founded belief that the Order will be enforced against them.” (p. 16) There could be no clearer admission of guilt. The cities admit they have pursued a policy of nullification. Their denial to enforce existing law has caused them “fear.” (p. 17) The fear they feel is not based on any actual action by the federal government, instead it emanates from their belief that “enforcement” of the Order will cause “injury.” (p. 18) Why would that be? Because that injury will come, they admit, when the the government enforces their immigration laws by denying them “funds on which they rely.” (p. 25)

We should perhaps set aside the obvious question of how these sanctuary cities can be so fiscally irresponsible that they cannot function in absence of federal monies from the taxpayers of other states. It is the fiduciary responsibility of local officials to balance their books. If their books were balanced, they would have no fear, unless they feared their loss was simply one of the loss of surplus largess, but that is not the argument they make. Orrick states:

The Counties have demonstrated that their sanctuary policies reflect their local judgment of what policies and practices are most effective for maintaining public safety and community health. Because they argue that the Executive Order seeks to undermine this judgment by attempting to compel them to change their policies and enforce the Federal government’s immigration laws in violation of the Tenth Amendment, their claims implicate a constitutional interest. (p. 28)

Orrick relies on arguments similar to John C. Calhoun’s

Because of the “potential loss of funds,” local governments and residents may be burdened. (p. 29) The state and local governments out of compliance with federal immigration laws may have to make different policy choices (i.e., respect federal law), or they may have to alter current “services” to account for the loss of federal funds. The horror.

In other words, Orrick relies on the Tenth Amendment to reject Trump’s Order because the order  requires the states to follow existing federal law! (p. 40) He goes on to assert that no state may abide by a federal law that requires it adopt a certain policy, or to carry out a federal program. The opinion is written so broadly in this section that it makes a mockery of the supremacy clause of Article 6; they may interpose themselves between any law or enforcement of the law they determine is unconstitutional. Slavery anyone? How about desegregated schools? Jim Crow?

We have been here before. In the “Exposition and Protest,” John C. Calhoun made similar arguments:

the general powers, expressly delegated to the General Government, are subject to its sole and separate control; and the States cannot, without violating the constitutional compact, interpose their authority to check, or in any manner to counteract its movements, so long as they are confined to the proper sphere. So, also, the peculiar and local powers reserved to the States are subject to their exclusive control; nor can the General Government interfere, in any manner, with them, without violating the Constitution.

Why may the states interpose their will and nullify the tariff? Because of the alleged self-interested economic harm to their industry. Lost in Orrick’s entire decision is the fact that there are certain states and certain cities that are refusing to enforce the laws and secure the safety of the citizens of the United States. His is a lawless decision relying on a principle used to defend slavery.


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