California’s Defiance Exposes a House (and Senate) Divided

Despite the passing of President Trump’s DACA deadline this week, with no action by Congress and even less notice from the media, California’s slow-motion revolt against the federal government continues apace. What began with the acceptance of lifestyle crimes such as marijuana smoking in violation of federal drug laws has turned into an all-out rejection of the nation’s immigration laws, followed by unilateral action by states and cities to declare themselves “sanctuaries” for illegal aliens.

As we learned in 1861-65, state nullification of federal laws is not compatible with a federal system; “a house divided against itself cannot stand,” as Abraham Lincoln put it in his famous speech accepting the Republican nomination for Senate from Illinois in 1858. Although he lost to Stephen Douglas that year, and while he was talking about slavery, the principle still holds true today as applied to similarly divisive issues.

A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing or all the other. [Emphasis mine]

Don’t think for a moment that the Left doesn’t fully understand Lincoln’s warning in the boldface words. In fact, they’re counting on it, just as the old South was counting on it when the Confederate states undertook secession. And for many of the same reasons.

Against ‘Sanctuary’ Policies—Finally
Accordingly, the Trump Administration is now pushing back against this arrant lawlessness. Attorney General Jeff Sessions on Wednesday will inform a meeting of the California Peace Officers in Sacramento that the feds went to court late Tuesday night to invalidate three California state laws that inhibit federal immigration officers from doing their jobs. According to the 
Los Angeles Times: “The laws make it a crime for business owners to voluntarily help federal agents find and detain undocumented workers, prohibit local law enforcement from alerting immigration agents when detainees are released from custody, and create a state inspection program for federal immigration detention centers.” Other states with similar “sanctuary” laws are likely to come under the gun as well.     

The long-overdue action is also a direct response to Oakland Mayor Libby Schaaf, who recently interposed herself between the illegal-alien community of the Bay Area and the U.S. Immigration and Customs Enforcement service (ICE). Learning of a pending ICE raid, Schaaf tipped off a prized constituency in advance, not once but twice: first in a statement and then a news conference the following day. As a result, federal agents managed to arrest only 150 aliens (and at least half of those convicted criminals), but 864 more threats to public safety escaped the dragnet. In Schaaf’s wake, California Attorney General Xavier Becerra also sued the Trump Administration over a minor retaliatory action in response to the Golden State’s rogue behavior. In question was an administration decision to withhold a small law-enforcement grant to the state. Becerra’s request was, however, denied by a federal judge.

The legal collision here, as Federal District Court Judge William Orrick noted, is between the federal government’s plenary power over immigration and the legal status of aliens, and an individual state’s interpretation and implementation of federal policy. The irony is rich: recall how the Left cheered when Arizona’s attempt to exert some control over its border with Mexico (S.B. 1070) was partially invalidated by the U.S. Supreme Court, citing the feds’ primacy in matters of immigration. Hilariously, the administration’s lawsuit against California is modeled on the one the Obama Administration used in 2010 to strike down parts of Arizona’s law.

Another irony is that the Left, as part of its ongoing shape-shifting, has suddenly discovered “state’s rights” in the form of the 10th Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This, graybeards may recall, was practically a Republican Party platform plank when Bob Dole ran against Bill Clinton in 1996.

On the federal side is the plain language of the U.S. Code, especially Title 8, Chapter 12 and its subsections. It begins:

Except as provided in subsection (b) and subsection (c) no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General.

That seems clear enough, but because the Left doesn’t like the law—and because it needs the votes of aliens, legal or otherwise, while it awaits the complete demographic replacement of the current U.S. majority population—it has decided to fight it. Not in the legislature, mind you, or even primarily in the courts, but on the streets of San Francisco and Los Angeles. This is a prescription for disaster if not, down the road, civil war. So good for Trump and Sessions for finally taking on California head-on.

The modern Left prefers to argue emotions rather than principles. As it happens, their principles are entirely fungible, unless you count their one overarching principle, which is to achieve and maintain power by any means necessary. When they need a friendly federal judge to issue an injunction against some particular policy with which they disagree, they’re all in favor of a federalism that allows a single solon anywhere in the 50 states to frustrate both the legislature and the executive. This is known as “social justice.”

Alternatively, when the national legislature passes a law, or the chief executive issues an order they despise, they simply nullify it, either covertly through enforcement inaction or, increasingly, overtly, through outright defiance. This is also known as “social justice.”

A Real Constitutional Crisis
The amendment that should be in play here, though, is not the 10th but the 17th, which changed the constitutional system for electing senators. When Lincoln ran against Stephen Douglas, it was not put directly to the will of the people, but to the members of the Illinois state legislature, who chose Douglas, 54-46, after a spirited campaign that included the famous Lincoln-Douglas debates. Until 1913, U.S. senators were expected to represent the interests of their states, not themselves, but direct election changed all that. Far from being part of the legislative branch, the Senate sees itself today as a kind of executive-in-waiting club, an antechamber for ambitious men and women who would really rather be in the White House—and who play to a national audience accordingly.

As a result of the 17th Amendment, the fight against the laws of the federal government is, shamefully, being led by senior Democratic senators, such as Dianne Feinstein of California, Richard Durbin of Illinois, and Charles Schumer of New York, as well as younger presidential hopefuls as Kamala Harris (Calif.) and Kirsten Gillibrand (N.Y.) True, the senators from these three states would probably be almost as radical were they selected by their blue state legislatures—but not necessarily. Upstate New York, downstate Illinois, and rural California tend Republican, and their legislative districts cannot be swamped internally by the votes from the big cities, whereas in a statewide election, they stand no chance.

The Trump Administration should continue its crackdown on the open defiance of federal immigration law, and most certainly should make an example of Mayor Schaaf, for the encouragement and edification of others. But the real enemies of federal law are found within the federal legislature itself, in the makeup of the United States Senate.

These days, the “house divided against itself” isn’t the country, or even the House—it’s the Senate. Until the 17th Amendment is repealed and the balance of the Constitution restored, there will be no justice and no peace.

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Photo credit: Michael Robinson Chavez/The Washington Post via Getty Images

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About Michael Walsh

Michael Walsh is a journalist, author, and screenwriter. He was for 16 years the music critic and foreign correspondent for Time Magazine, for which he covered the fall of the Berlin Wall and the collapse of the Soviet Union. His works include the novels As Time Goes By, And All the Saints (winner, 2004 American Book Award for fiction), and the bestselling “Devlin” series of NSA thrillers; as well as the recent nonfiction bestseller, The Devil’s Pleasure Palace. A sequel, The Fiery Angel, was published by Encounter in May 2018. Follow him on Twitter at @dkahanerules (Photo credit: Peter Duke Photo)

Photo: (Photo by Michael Robinson Chavez/The Washington Post via Getty Images)