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FEDERAL "SUPREMACY" OR USURPATION?

 

By “Mark Andrew Dwyer”

 

August 13, 2007 (Last update January 3, 2008)

 

 

When I  learned a year ago the details behind sentencing two Border Patrol agents, Ignacio Ramos and Jose Alonso Compean, to 10+ years in federal prison for doing their job of enforcing the American border, I thought I saw the height of unconstitutional absurdity, paramount to everything I had ever seen in judicial matters (see [1] for a detailed analysis). Not anymore. Last month's injunction by a federal judge James M. Munley (see [2] for full text) against the city of Hazelton's Illegal Immigration Relief Act (see [3]) surpassed my wildest imagination of what could the limit of judicial nonsense be, and made my jaw drop.

 

Quoting the so-called "supremacy" clause (Article VI [2]) of the U.S. Constitution, and the naturalization clause (Article I Section 8 [4]) with (implicitly) its enforcement provision (Article I Section 8 [18], a.k.a. necessary-and-proper clause), judge Munley arrived at an invalid conclusion that the federal government has the sovereign power to not enforce the immigration laws, or even to obstruct (as, for instance, judge Munley did) any enforcement of these laws, if it chooses so (has an interest not to1), and We the People have no business interfering with Feds' divine choice in these matters. As if 10th Amendment (which the Congress lacks authority to infringe upon or change, unless by means of another Constitutional amendment duly ratified by 3/4 of the state legislatures) that amends the Constitution and supersedes the "supremacy" clause did not say:

 

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,  

never mind The Declaration of Independence's Consent of the Governed self-evident truth:

 

whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government

that judge Munley's royal interpretation of the "supremacy" clause renders but a meaningless figure of speech, so that nothing stays in the way of federal progressive usurpation of unconstitutional powers.

 

Deriving the supreme and pre-emptive power to not enforce, or even to de facto obstruct the enforcement, both at the local (like in the case of city of Hazelton) or federal (as discussed in [1]) level,  from the questionable2 federal authority to enforce was an invalid inference that I found particularly absurd in judge Munley's "reasoning", by no means the only or even the most serious flaw. In the chapter THE FLAWS (below), I present a non-exhaustive list (which will be updated periodically) of other flaws in his legal argument that testify poorly about his command of Constitutional law and the Supreme Court's relevant rulings3, as well as about his ability to reason logically, and rise serious questions about academic standards that prevail at Temple University School of Law that he graduated from in 1963.

 

How could a federal judge and, presumably, an experienced lawyer, arrive at conclusions that are so absurdly at odds with the language of the Constitution and its Amendments? Although the 206 pages-long ruling is a convoluted mess that punishes an analytic reader with its inconsistencies and a lack of clarity (see item 6 of section Absurd Interpretations chapter THE FLAWS, below, for annotated excerpt from judge Munley's ruling), the answer to this question is surprisingly simple: judge Munley piled (often invalid) inferences upon inferences and, by doing so, departed farther and farther from the actual law of the land that he was supposed to uphold.

 

The Supreme Court of the U.S. has followed the "no inferences upon inferences" legal doctrine for quite some time now (see [4] for a brief overview), particularly in the cases involving 10th and 14th Amendments (see, e.g., [5]), and justly so. Since the laws, their language, and the rules of legal reasoning are not 100% precise (not in a sense that, say, symbolic logic or abstract algebra are), each time an inference is made, a tiny (and, hopefully, negligible) potential error is injected to the legal system. This, in itself, is usually acceptable as a matter of practicality (particularly, when is a part of court's opinion and not the actual verdict), but when inferences are piled upon inferences and upon inferences, the tiny error accumulates little-by-little and, as years and decades go by, becomes larger and larger up to the point when it is no longer negligible or acceptable. And, of course, the departure from the original premise become even more dramatic if any of the individual inferences were, in fact, invalid, as it has been the case of the judge Munley's ruling4.

 

Here is an example. Suppose that each day you take a day job that pays $20 per hour, with the right to continue each following day with hourly rate about the same as the rate the day before. When I say "about" I mean that you are not going to object if your hourly rate decreases one penny (nor would you object if it increased). Your employer pays you at the end of each day of work. The first day he pays you $20 per hour. The next day he pays you $19.99 per hour (just one cent less, you don't care). The third day he pays you $19.98, and so on, each day subtracting just one cent from your previous hourly rate. Any time he does so, his reasoning goes like this: "Look, we have agreed that today your rate is going to be about the same as your yesterday's rate, and you said you wouldn't mind if it's a penny less. So if I pay you one cent per hour less then yesterday, I am in total accordance with our agreement." Well, it seems logical, but after 2,000 days, or in about eight years of employment (assuming you work five days a week 50 weak a year) your hourly rate becomes ... $0 (zero dollars) per hour, definitely not what you could expect from a job that was supposed to pay about $20 per hour. (Another more entertaining example illustrating absurd consequences of a sequence of repetitive little-by-little changes may be found in [6].)

 

And so goes piling inferences upon inferences. A federal judge F1 deliberates the law of the land L and infers from it  conclusion c1 that to all practical purposes logically follows from L. Let's denote that fact by L c1. Then, another federal judge F2 deliberates the previously inferred conclusion c1, and infers from it conclusion c2 that to all practical purposes logically follows from c1. Let's denote that fact by c1 c2. Using the transitiveness of logical inference5, judge F2 then concludes that since L c1 and c1 c2 then L c2, or, in other words, that conclusion c2, to all practical purposes, follows from the law of the land L. Then, yet another federal judge F3 deliberates the previously inferred conclusion c2, and infers from it conclusion c3 that to all practical purposes logically follows from c2. Let's denote that fact by c2 c3. Using the transitiveness of logical inference (again), judge F3 concludes that since L c2 and c2 c3 then L c3, or, in other words, that conclusion c3, to all practical purposes, follows from the law of the land L. This process continues, involving more and more federal judges until, eventually, one of them, say,  F500 , infers a desired conclusion M from the previously inferred c500, and concludes that since L c500 and c500 M then L M, or, in other words, that conclusion M, to all practical purposes, follows from the law of the land L. The resulting pile of inferences upon inferences: L c1 c2 c3 ... → c500 M, or, more formally, L  c1, L  c2, ..., L  c500, L M , is used as a "justification" for the invalid conclusion M (the number 500 here is for illustration only; it could have been as small as 10 or less and still lead to an invalid conclusion M). As we have seen before, the final conclusion M may depart quite dramatically from the original premise L (particularly so if some of the individual inferences cn cn+1 were invalid, as it is the case of judge Munley's ruling4), and this is why the Supreme Court of the U.S. tends to reject M as a result of invalid reasoning6 L  c1, L  c2, ..., L  c500, L M, while judge Munley accepts it and, therefore, he accepts M (and all previously inferred conclusions c1, c2, ..., c500) as logical consequences of the law of the land L. Hence the absurdity of his ruling.

 

I sincerely hope that one day judge Munley's entire ruling ([2]), full of errors, fallacies, misinterpretations, inferences piled upon inferences, presumptions upon presumptions7, and absurd or invented assertions, will be placed in the Federal Museum of Judicial Nonsense as a prime example of damage a Liberal activist judge nominated by a Liberal president can inflict to a constitutional republic.

 

A thing well worth remembering during the next presidential elections. 

 

 

THE FLAWS [back to article]

 

I will add to the list of the flaws and/or augment it with additional comments and references. Please, visit [save this link] once or twice a month for future updates.

 

Absurd interpretations of the (fragments of the) Constitution and its Amendments

 

The Constitution needs to be interpreted as a whole, according to its stated purpose, and not - like many Liberals do - each part independently and in abstraction from the purpose it serves, according to the current agenda of the interpretee. If an interpretation of one part of the Constitution has nonsensical consequences for another, it must be rejected as invalid. Moreover, the Amendments supersede the Constitution and earlier amendments, and - contrary to judge Munley's insinuation - do not summarily pre-empt8 fundamental rights of the states, or the people, like - for instance - the right to self-defense, unless specifically (as opposed to implicitly) required to do so. In particular, 9th Amendment testifies strongly against any such summary pre-emption. Judge Munley consistently used the Constitution against legitimate interest of the American people, recklessly stripping them of their several God-given rights (the right to self-defense was one of them), and gave himself liberty to interpret terms "people", "person",  and "jurisdiction" according his idea of common-sense meaning of these terms, without much regard to the context that they were used and clearly absurd ramifications of his interpretation. He, like many other Liberal activists and organization (for instance, ACLU) freely "interpreted" some parts of the Constitution, conveniently ignored other parts of the Constitution (like, for instance, 9th and 10th Amendments), and insisted on literally reading yet another parts of the Constitution.
 

 

1. The purpose of the Constitution has been clearly stated in its Preamble:

 

We the People of the United States, in Order to […] secure the Blessings of Liberty to ourselves and our [emphases added] Posterity, do ordain and establish this Constitution for the United States of America.

 

The Constitution doesn't say "in Order to […] bestow various rights and privileges on aliens and their Posterity", nor does it indicate that it intends to protect the entire world against the excesses and reckless acts of American citizens. To the contrary, the Constitution and its Amendments, particularly, the first ten, a.k.a. the Bill of Rights, was passed and ratified in order to protect the American people and their legitimate interests (Declaration of Independence's "Pursuit of Happiness") against the rest of the world and against abuses of power of their own federal government, but not the other way around (see, e.g., the U.S. Supreme Court certiorari [10] item (c) that reads: "The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory.") Any attempts to use the Constitution, as well as the Bill of Rights and other Amendments (in particular, Fourth Amendment and 14th Amendment), contrary to their clear intent, like attempts of making it easier for the invaders and intruders of all trades to infiltrate the American nation and root themselves there, obstructing their apprehension and deportation, or disabling this nation's ability to resist incursions into its communities, territory, sovereignty, and integrity - of which many things judge Munley's ruling clearly did - are legally invalid and clearly unconstitutional. They can be compared to the use First Amendment as an instrument to silence somebody (which many "Latino" activists actually attempt doing), suppress a religion (did anyone say: "ACLU"?), or to justify censorship.

 

Also, 14th Amendment's purpose was to award full citizenship rights to former slaves that were freed by the passage of 13th Amendment and not to facilitate displacement of Americans by the migrating hordes of aliens from Mexico and other Third World countries, the fact that judge Munley totally ignored in his abstract (detached from its purpose and original intent, that is) interpretation of 14th Amendment. It's worth noting here that its enforcement clause that reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this [emphasis added] article." It does not say: "The Congress shall have power to infringe upon the constitutional rights/powers of the States and the people, or to deprive them altogether of  their constitutional rights/powers, as it sees fit, should it have a 'compelling interest' in doing so." So, as long as the States or the people are not infringing upon the rights of former slaves that were freed by 13the Amendment, or their American descendents, there is no constitutional basis whatsoever for federal infringements upon the States and the people's constitutional rights and powers guaranteed to them by the Bill of Rights, including ones indicated in 9th and 10th Amendments. Any argument to the contrary would equal to appointing a fox a guardian of a henhouse, since the purpose of the Bill of Rights was protection of the States and the people against abuse by the federal government. 

 

(Read [9], written by a University of Chicago Law School alumnus, for a brief history of 14th Amendment.)

 

2. One of the most fundamental rights of the States and the people has been the pre-existing right to self defense, confirmed by 9th Amendment, and implicitly acknowledged in the Constitution. For instance, Article I Section 10 [3] of the Constitution expressly forbids the States from engaging in war unless "actually invaded, or in such imminent Danger as will not admit of delay." (See also 2nd Amendment that refers to Militia as "being necessary to the security of a free State", which confirms the pre-existing, and therefore constitutional, right of State to be both free and safe.)  Judge Munley's insistence that the States and the people do not have similar right in cases of lesser gravity than war, in particular, the right to defend themselves against (mostly) unarmed invasion of illegal aliens and their rebellion (samples of which we saw on American streets several times in recent years), even though the Constitution does not prohibit them from doing so (so that 10th Amendment does apply), is not only devoid of constitutional basis but is clearly irreconcilable with a notion of sanctity of basic rights of States and the people that the Constitution was based upon.

 

Note that the provision "repel the invasion" of Article I Section 8 [15] indicates clearly that defense against persons not within state's jurisdiction (in this case, the insurgents or the invaders) is expressly allowed by the Constitution to the states, and the people. Indeed, it is the most basic authority/right that once invalidated must inevitably lead to loss of freedom (hence verbose of 2nd Amendment: "necessary for the security of free state"). Even the federal government realizes that fact when it conducts warrantless surveillance of telephone conversations that target foreign suspects (as opposed to American citizens)
 

3. Judge Munley's favorite "supremacy" clause  that he interprets as a valid excuse for the federal government to usurp any power within its "zone of interest", and deprive the States and the people of such power, has been substantially restricted by 10th Amendment (quoted above). In particular, the U.S. Congress is not allowed to pass any laws in matters that the Constitution does not specifically authorizes it to, because the State and the people have the sole authority in all such matters. For instance, the only power regarding regulation of matters related to immigration that the Constitution grants to Congress (without prohibiting it to States, though) is the one mentioned in the naturalization clause (Article I Section 8 [4]) that authorizes it "to establish an uniform Rule of Naturalization" - a far cry from sweeping powers covering all issues related to illegal immigration9. Therefore, there is no constitutional basis to assert that the federal government's acts, when they pertain to immigration issues other than naturalization and national defense, are automatically "supreme" to the acts of States and the people (for instance, to the acts of city of Hazelton). Quite to the contrary, 10th Amendment creates presumption of supremacy of the latter acts over the former ones, the undisputable fact that judge Munley conveniently omits. And no matter how much one may insist that 14th Amendment was specifically designed to facilitate the federal power grab (see [9]), its enforcement provision (Section 5) "The Congress shall have power to enforce ..." (as argued in item 1, above) does not authorize Congress to void constitutional rights/powers of the States and the people without approval of 3/4 of the States, and only an anti-Bill-of-rights maniac would claim that it dose so. Furthermore, it does neither justify the Feds' refusal to enforce the existing immigration laws (and other laws that were supposed to protect the States and the people against invasion of aliens), never mind any obstruction of their enforcement, nor does it make unconstitutional for the States or the people to defend themselves against such invasion under the circumstances of the federal government's inaction. It is of essence here that the enforcement provision (Article I Section 8 [18]) of the Section 8 of the Constitution that contains the naturalization clause authorizes Congress to pass laws that are "necessary and proper for carrying into Execution [emphasis added] of the foregoing Powers" but not for the refusal of execution of such powers (never mind any obstruction thereof) or for stopping the States or the people from exercising their constitutional options should the federal government refuse to carry on their constitutional duties. (Also note that, by virtue of a similar argument, although the federal government has a power to "suppress Insurrections and repel Invasions" delegated to it by the Section 8 [15], the federal refusal of doing so is not among powers delegated to the United States, never mind prohibiting the States, or the people, from their engagement in a defensive action.) In other words, the Constitution doesn't stipulate that powers delegated to the United States that the federal government refuses to execute are automatically prohibited to the States and the people; it contains several provisions that allow the States and the people to seek remedies, particularly when in "imminent danger". Judge Munley's repeated claims to the contrary are an invention of his and other judges that he refers to in his ruling.

 

4. The term "people" refers to a class that the Supreme Court called a "national community"10 and does not automatically include every human being or even every human being physically present in the U.S. The admissible meaning of the term "people" has been restricted by the Constitution's Preamble (quoted above), and any interpretation that falls outside of this restriction is invalid. In particular, 2nd Amendment that protects "the right of the people to keep and bear Arms" does not apply to everyone, for instance, it does not apply to members of an invading army (obvious observation) and to illegal aliens (federal law currently on the books). (Added January 3, 2008) Also, First Amendment does not apply to everyone physically present in the U.S., for instance, excludable aliens are not entitled to its protections10a. Similarly, 4th Amendment that confirms "the right of the people to be secure against [...] unreasonable searches" does not protect illegal aliens from warrantless inquiries into their immigration status (because they do not fall into the "national community" class) nor does it give them any "privacy rights" that judge Munley was so quick to bestow. For instance, Judge Samuel Alito, a renowned constitutional scholar and a Supreme Court Associate Justice, during his nomination hearings expressed his strong opinion that illegal aliens do not automatically acquire “constitutional right” while on the U.S. soil (see [11] for a brief report of Alito’s earlier statements in this matter). In 1986, he made a compelling case that nonresident aliens, which category includes illegal aliens, do not enjoy protections offered by 4th Amendment, contrary to what judge Munley claims, and the Supreme Court never ruled that they do.

 

5. The term "person within [State's] jurisdiction", as it appears in 14th Amendment, refers to a bona fide resident of the U.S. and the State in question, or to someone who submitted himself to that State's jurisdiction. To insist that it means anyone physically present within State's territory - as judge Munley did following some earlier inventions4 - equals to concluding such absurd notions as allegedly constitutional obligation to extend due process and equal protection of rights to each and every soldier of the invading army or insurgency, should an invasion of the U.S. or a rebellion therein occur. (See [1] for a more thorough argument along these lines). Once we have noted absurdity of such a conclusion, the judge Munley's interpretation of phrase "every person within [State's] jurisdiction" as "every human being physically present within State's territory" becomes invalid and cannot be used to derive legal ramifications of legislative acts, and any insistence to the contrary lacks a valid constitutional basis, no matter what stare decisis is being quoted in support of such insistence.

6. [back to article] Below is a verbatim quotation from the judge Munley's ruling ([2], page 44, footnote 14). Due to its absurdity, irrelevance, and a lack of coherence, it may be a rough reading, but it's worth the trouble because it gives a reader a good insight into judge Munley's "command" of the law and his reasoning ability. The general line of judge Munley's rationale here is to make the category "illegal alien" a subcategory of "the accused in criminal prosecution", and then award to all illegal aliens all the rights of the accused in criminal cases, many of which, by the way, even the majority of full-blown citizen do not enjoy11. To my best knowledge, such is purely a judge Munley's invention, made even more bizarre by the fact that most common immigration violations, like, for instance, first illegal entry, are civil and not criminal violations, so the "protections" that Munley offered to all illegal aliens do not apply even to those actually accused and prosecuted for first illegal entry. On a technical note, judge Munley "consolidated" 4th, 5th, and 6th Amendments in one monolithic law despite the fact that they relate to different domains. 4th Amendment protects the rights of We the People (the members of "national community", according to the U.S. Supreme Court's language that exclude illegal aliens, see item 4, above), 5th Amendment protects the right of a person to due process in criminal cases that involve "a capital, or otherwise infamous crime", or may result in person's depravation "of life, liberty [by means of imprisonment], or property" (common immigration violations do not fall into this category, and city of Hazelton did not attempt to execute any one, put him in jail, or impound his property), while 6th Amendment affirms the right of the accused to a fair trial in "all criminal [not civil or administrative] prosecutions", so it does not apply to person not accused in a criminal trial; in particular, it does not apply to common immigration violations. (See [10] for the U.S. Supreme Court's certiorari in which the Court clarifies, albeit narrowly, the issue of applicability of 4th, 5th, and 6th Amendments to different classes of people along the lines described above.) If the above was the only flaw in judge Munley's ruling, it would still make me very skeptical about his command of the constitutional law. 

 

Here is the annotated quotation, in italics, augmented with [my comments in boldface]:

 

Fundamental to the American legal tradition is the notion that those accused of and convicted of crimes [in criminal prosecutions, judge Munley "forgot" to mention, which, by the way, is not the case of city of Hazelton's Act as it does not attempt to accuse or convict anyone] possess fundamental rights which are not abrogated simply because of such person’s alleged behavior. A person accused of a crime [there is no single sentence in entire city of Hazelton's Act that may be construed as accusing anyone of crime in the court of law]  is entitled, among other rights, to be free of unreasonable search and seizure [Wrong! the freedom from unreasonable searches is affirmed by 4th Amendment that does not apply to every one but only to the members of the class "the people". In particular, since 4th Amendment is not generally applicable to illegal aliens, they do not enjoy such protection, and justly so. See item 4, above]; to the presumption of innocence [Wrong, again. Presumption of innocence is an extra-constitutional doctrine (try to find it in the Constitution or in its Amendments if you don't believe me) that applies to the accused during a criminal trial, and, in particular, not to illegal aliens violating our national border and the immigration law. To claim that every border hoper is legal unless proven otherwise in the court of law is not only absurd but also without a base in the law of the land.]; to the proof of her guilt beyond a reasonable doubt [only during a criminal trial, not even during a civil trial where the preponderance of evidence is used, instead; just imagine what would happen if we had to let every person that we cannot prove "guilty" of something into the U.S.]; to minimally competent legal representation [in criminal prosecution only - not the case of city of Hazelton's Act]; to access to any potentially exculpatory evidence [only those accused of crime in the court of law enjoy that]; to be free of cruel and unusual punishment [deportation, as well as other forms of removal (or discouragement) of illegal aliens, is not a penalty: it's restitution, so this is an invalid argument - see [12]]; and to seek a writ of habeas corpus. See, e.g., U.S. CONST. amends. IV, V, VIII; Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution [What was he smoking? There is no "prosecution" involved in the city of Hazelton's Act] of evidence favorable to the accused [there is no "accused" there, either] upon request violates due process [5th Amendment guarantees "due process" to "any criminal case" that would deprive defendant of "life, liberty [by imprisonment, that is], or property", none of which city of Hazelton's Act was trying to accomplish]  where the evidence is material either to guilt [no one is attempting to find them guilty of something] or to punishment [no one is trying to "punish" them, either; removal and similar actions are restitutions and not punishment, just like when you throw a trespasser from your residence is a restitution (of the status quo ante) and not a punishment], irrespective of the good faith or bad faith of the prosecution.”). Strickland v. Washington, 466 U.S. 668, 685 (1984) (holding that “[a]n accused [there are no accused in the city of Hazelton's Act] is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial [there is no trial, either; it's mind boggling how a judge could come up with so much nonsense in one footnote to his ruling] is fair.”). We note, however, that an alien subjected to a deportation hearing [the illegal aliens that illegally work and live in Hazelton are not subject to a deportation hearing, and should they fall into that category at a later time, no one, not even the city of Hazelton, would deny them their legal protections, if they are eligible for any, and there is nothing in the city of Hazelton's Act that would even suggest to the contrary] “whether for crime or for other reasons, [is] protected only by the procedural requirements of the Due Process Clause [of 5th Amendment that does not apply here].” DANIEL KANSTROOM, United States Immigration Policy at the Millenium: Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1896 (2000). The contemporary concern with and opprobrium towards undocumented aliens does not lead us to the conclusion that those who violate the laws to enter the United States can be subject without protest to any procedure or legislation [this is judge's Munley's unproven claim, not supported by his "rationale" above], no matter how violative of the rights to which those persons would normally be entitled as persons in the United States [judge Munley's invention]. Our legal system is designed to provide rights and exact justice simultaneously. [Yeah, right. This is how are we going to defend our country against invasion or rebellion should one occur: don't you dare to repel or suppress them without awarding each and every rebel/soldier all the rights that judge Munley bestowed on all illegal aliens in this country.]

 

I hope you have had enough.

It appears that some federal judges, and judge Munley is one of those, have about as much desire to not exceed the limits of power that the Constitution spelled out as King George had to be a fair and law-respecting ruler of the American colonies.
 

 

Federal "supremacy", or usurpation?

 

There is a dose of hypocrisy surrounding the so called federal "supremacy" in immigration issues. When sanctuary cities are building "immigration assistance centers", or extend other assistance to illegal aliens in order to help them violate the immigration law and dodge deportations, no federal judge rushes to stop them. But when some other cities and States (like, for instance, the State of California when its people passed the Proposition 187) are trying to defend themselves from being overrun by lawbreakers then well, they are not permitted doing so.

 

When one reads the Constitution and its Amendments in the order they were ratified (so that the latter superseded the former), it's clear that 10th Amendment greatly restricts federal "supremacy" to a narrow domain of powers that were specifically delegated to the U.S. or specifically prohibited to the states. Obviously, one can smuggle to that category quite a lot by piling, like judge Munley did, inference upon inference, or presumption upon presumption7 (see the main article for a detailed discussion), and the interstate commerce clause, as well as 14th Amendment have a well documented history of federal usurpation in this respect. Fortunately, this trend has been reversed by a seminal U.S. Supreme Court ruling [5] (see item 3 in section Absurd Interpretations for more discussion).

 

10th Amendment says: “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 [e.g. to local governments]”. This language has two important consequences.

(i) There is a difference between the rights delegated to the United States and the rights prohibited to the States (for otherwise they would not be repeated twice in the same sentence), so the fact that the Constitution delegates certain matters related to immigration to the federal government does not mean that these matters are prohibited to the States and to the people. In other words, it’s perfectly consistent with the Constitution for a local government, in particular, city of Hazelton, to regulate issues related to illegal immigration.


(ii) The States and the people, unlike the federal government, are empowered to enact their legitimate will as they see it fit, while the federal government is not. Since the Constitution did not delegate the right to regulate issuance of local business licenses or apartment rentals to the federal government, not only city of Hazelton possesses that right but also the federal government has no authority in these matters (because such a right has been “reserved to the States […] or to the people” by 10th Amendment). Claiming to the contrary (that the federal government has that right and city of Hazelton doesn’t) is a travesty of the Constitution that borders with usurpation (if the Congress does it) and treason (when a judge does).

 

A comprehensive discussion of the federal "supremacy" in immigration issues, or of a lack thereof (a highly recommended reading) may be found in [8].

 

 

Limits of federal authority

 

Declaration of Independence clearly states whose power is supreme, and the Constitution more or less clearly confirms that. It's We the People and not the federal government who is supreme (sovereign, if you will) here because the latter owes all its powers to the former's consent (if they granted any). The ultimate exercise of people's sovereignty is the alternation or replacement of the uncooperative or usurpative government, as spelled out in the Declaration of Independence. These self-evident truths apparently didn't fly well with judge Munley and his vision (as expressed in his ruling) of the ultimate authority that he and other members of the three branches of the government have been empowered with, and indefinitely so (at least the federal judges have). His disregard of the legitimate will and needs of We the People, as opposed to that of invaders and other illegal aliens, is visible with a naked eye.

 

Contrary to what judge Munley suggested, the U.S. government does not possess the ultimate authority in all issues it chooses to place in its "zone of interest", and, as I indicated above, the U.S. Supreme Court has long recognized that.

 

Will some slick open-border advocates and illegal alien activists claim that preventing illegal immigration is a "federal matter" just because they know that the federal government has quite limited constitutional authority in this aspect and, therefore, is unlikely to provide the decisive enforcement? Some definitely will, but most of them "delegate" immigration enforcement to the federal authorities just because these authorities, constitutionally empowered or not, gained a notoriety for not enforcing and even for obstructing the enforcement of the border and the immigration laws.
 

 

Due process and presumption of innocence

 

"Innocent until proven guilty" is a purely legal doctrine (see [14]) in criminal proceedings, not found in the Constitution and its Amendments (check for yourself if you doubt). Contrary to common perception, this doctrine does not make a perpetrator innocent of the crime he committed if the prosecution failed to prove it in the court of law (if you did it, you are guilty like a dog, whether convicted or not) because adjective "innocent" in this context means "innocent in the eyes of the court" and does not necessarily imply the factual innocence. The right to due process is guaranteed by 5th Amendment but  for the purpose of  criminal punishment only, and deportation (as well as many other anti-illegal immigration measures, like the ones undertaken in the city of Hazelton's Act) are not criminal punitive measures nor are they criminal penalties (they are restitutions - see my annotation within item 6 in section Absurd Interpretation for a brief argument and [12] for a more comprehensive one).
 

Although covered by Geneva convention, neither the members of an invading army nor the insurgents enjoy the presumption of innocence (they are guilty as soon as we see them invading our country), nor do they have a right to due process (unless they have been criminally prosecuted for the crimes they committed while on American soil); summarily granting these privileges to illegal aliens that, generally, are even less protected by the law of the land than the invaders and insurgents are is not only nonsensical but also unconstitutional. An absurd legal doctrine, invented by Judge Munley, that every alien is legal until proven illegal in the court of law12, in addition to other flaws, would unduly shift the burden of proof from the invaders to the defenders and would de facto amnesty the entire class of illegal aliens if it's large enough (as it is now) to make it impractical, or prohibitively costly, to prove, in a "due process" (judge Munley's insistence), that each individual member of this class is. If someone followed judge Munley's flawed reasoning in this matter then not only removal of large populations of illegal aliens but also repelling invasions and suppressing rebellions would be rendered practically and/or economically infeasible.

 

 

Civil rights

 

Claiming that aliens, particularly, the illegal ones, have "civil rights" while in the U.S. is a nonsense that can only be explained by the ignorance or bad faith of the claimant, and all arguments in support of such rights are instances of idealistic fallacy13. Per my Webster's Dictionary, the relevant meaning of "civil" that applies here is "of or relating to citizens", which excludes the illegal aliens from its scope, unless one insists that they are ... "undocumented citizens" (as one Democratic Senator put it). It is of essence here that 14th Amendment was passed for a specific purpose (to protect the civil rights of the freed slaves) and taking it away from this context and twisting its intent and language4, particularly by piling inference upon inference and presumption upon presumption7, will not only lead to absurd conclusions but will also infringe on basic constitutional rights (like the right to self-defense against an invasion or rebellion discussed in item 2 of section Absurd Interpretations) of the States and the people. 

 

Misinterpretations of 14th Amendment made of its enforcement clause (Congress shall have power ...) a handy tool for federal progressive usurpation that lately has been more threatening to the very fabric of the American constitutional republic than the notorious interstate commerce clause. Many federal-level politicians and judges tend to interpret that enforcement clause as a blank mandate for federal authorities to deprive the States and the people of their constitutional rights/powers, ostensibly, in order to better protect these rights/powers. (Did anyone say: "A fox appoints himself a guardian of a henhouse"?) In order to avoid it becoming an explosive point of conflict, the people must find an effective way to prevent further power grab by the federal bureaucrats.

 

Recently, I heard this form of idealistic fallacy13: illegal aliens have more rights in the U.S. than a tree or a rock; therefore, they have the right to ... (insert an appropriate "right" here). The fallacy of this argument becomes obvious after you substitute "soldiers of invading army" for "illegal immigrants". They also have more rights than a tree or a rock (actually, they have more rights than illegal aliens because they are protected by Geneva Convention which the illegals are not) but it doesn't give them any civil rights, 4th Amendment rights, etc.
 

 

Negative obligation and Munley's naturalistic fallacy

 

Applying constitutional law to a specific case that may arise in the court of law requires from the judge to carefully distinguish between obligations (positive obligation "ought" and two negative obligations "must not" and "doesn't have to") and facts (positive facts "obeys" and "exercises", and negative facts "refuses"). Logically correct treatment of negation (in particular, of negative obligation) while deriving consequences from a set of assertions (e.g., from a set of legal obligations) gained notoriety for conceptual difficulty and counter-intuitiveness (see [13] for a comprehensive review of state of the art in a general setting). Unfortunately, most, if not all, judges are de facto illiterate (dilettantes, at best) in this respect. It must surprise no one, then, that legal derivations that involve negation have been plagued with fallacies and self-contradictory assumptions. And the case of judge Munley's injunction against the city of Hazelton is not an exception here.

 

Judge Munley has managed to derive obligations from facts in a way characteristic to naturalistic fallacy which incorrectly concludes "ought" from "is", like, for instance, inferring that federal government ought to regulate all issues related to immigration just because it is doing so (for over 100 years, according to his account), or - in a contrapositive form - "must not" from "is not", like, for instance, inferring that States and the people must not "interfere" with federal legislative attempts in this respect just because they has not been lately (not that he didn't commit other mistakes in this respect, as indicated in the main article). Interestingly, Mr. Munley being a Liberal activist judge should be the last person to commit the naturalistic fallacy (and indeed, he committed the idealistic fallacy13 as well, and at several occasions in his ruling), as it is the basic attribute of a Liberal activist judge to rule based not necessarily on what the law actually is but on what he thinks it ought to be, instead. But then, again, integrity is a rarity in that exclusive club.
 

 

THE LAWS

 

Constitution of the United States [excerpts]

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
[...]

Article I
[...]

Section 8

[1] The Congress shall have Power
[...]

[3] To regulate Commerce with foreign Nations, and among the several States

[...]

[4] To establish an uniform Rule of Naturalization,
[...]

[15] To [...] suppress Insurrections and repel Invasions;
[...]
[18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
[...]
Section 10
[...]
[3] No State shall, without the Consent of Congress, [...] engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
[...]
Article VI
[...]
[2] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
[...]
Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
[...]
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

 

Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defense.
[...]
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X 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.
[...]
Amendment XIII [1865] Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2 Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV [1868] Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[...]
Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
 

_________________________________________

Footnotes. 1On pages 117-118 of his ruling [2], judge Munley refers to "too stringent of an enforcement" and "excessive enforcement" that, in his opinion, may cause undue burden for employers, prompt removals of citizens and lawful residents, and result in some unspecified negative impact on U.S. foreign policy and international alliances. (He failed to mention federal government interest in non-enforcement of the border and the immigration laws, or the obstruction thereof, as means to provide its corporate lobbyists with "cheap" labor in order to suppress the prevailing wages on the U.S. job market.) Whether one accepts these as valid premises (certainly, no one at his right mind would intend to deport citizens of the U.S. from this country), judge Munley failed to indicate any valid Constitutional basis for such non-enforcement (never mind obstruction of the enforcement), and that is assuming that the federal authority to enforce, however unconstitutional, does de facto exist (for over 100 years, per judge Munley) in these matters. Moreover, even if one were to assume that the federal government has the extra-constitutional authority to not enforcing the immigration regulations that it enacted into the law (which I strongly doubt that it does, except, perhaps, in the cases that it doesn't have any authority to enforce), or to obstruct their enforcement, 10th Amendment makes it clear that both the States and the people, in particular, the city of Hazelton, have the right to exercise their constitutional (see [7] for a brief history) powers in this respect. In particular, neither the Constitution nor its Amendments prohibit them from exercising their powers in these matters just because the federal government chose not to (or, for the reason conjectured above, wants to obstruct any exercise of such powers), and, in fact, the exercising of these powers at State and local levels seems like the most logical consequence of the federal government's refusal or failure to do so. 

 

2See, for instance, [8] (a highly recommended reading) for a thorough analysis of the foundations (or, rather, a lack thereof) of federal authority in the area of immigration.

 

3For instance, although judge Munley referred to Plyler vs. Doe, 457 U.S. 202, 212 (1982) and DeCanas v. Bica, 424 U.S. 351 (1976) while discussing federal pre-emption in the area of immigration, he dismissed DeCanas as void (in Munley's opinion) by 1986 IRCA, but stuck to Plyler vs. Doe despite the fact that it borrows from DeCanas and was (arguably) superseded by IRCA. In DeCanas, the Supreme Court removed the myth of preemption on the basis of a notion of implied congressional intent, allowing for only objective factors to be applied. In particular, DeCanas decided that "standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration. Even if such local regulation has some purely speculative and indirect impact on immigration [that was exactly what judge Munley postulated in his ruling], it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve", which IRCA did not void, and even if it attempted to, it would have lacked the authority to doing so (except by means of Constitutional amendment) as it pertains to Constitutional matters. Apparently, judge Munley believes that the Congress, by implicitly usurping for itself powers not delegated to it by the Constitution (see [8]) invalidates, by virtue of the "supremacy" clause, the U.S. Supreme Court's rulings (for instance, DeCanas) in the usurped areas.

 

4For instance, the Supreme Court in some of its opinions (e.g., in Plyler v. Doe, 457 U.S. 202, 212, 1982) recycled the extra-constitutional assertion that all persons within a state’s territory automatically fall under that state’s jurisdiction, which doctrine was invented in Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) by arbitrarily injecting the word “territorial” between the words “its” and “jurisdiction” into the language of the equal protection clause of the 14th Amendment, and erroneously interpreting the phrase “the equal protection [emphasis added] of the laws” as “the protection of equal laws [emphasis added]”, so that the equal protection clause of the 14th Amendment “nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws" mysteriously becomes an equal rights clause (court’s invention) that reads “nor shall any State [...] deny to any person within its territorial [emphasis added] jurisdiction the protection of equal laws [emphasis added]", without much regard to logic and obviously absurd consequences of such an invention. Needless to say, judge Munley piled his own (mostly invalid) inferences on those made in Yick Wo v. Hopkins and Plyler v. Doe.

 

5Unfortunately for judge Munley who apparently is not aware of this fact, the transitiveness of inference (meaning that if one can infer q from p and r from q then one can also infer r from p) does not hold for approximate (logically or mathematically imprecise, that is) reasoning, as the decreasing hourly wage example clearly shows. What is particularly paradoxical here is that in each particular step a reasonable person would (reluctantly) agree that the approximate inference is transitive (for instance, if you have already agreed that a decrease of your rate from, say, $17.47 per hour to $17.36 per hour over 11 days is within the meaning of phrase about the same as, and, at a different occasion, that a decrease from $17.36 per hour to $17.35 per hour in one day is within the meaning of phrase about the same as,  then you would appear unreasonable if you objected a decrease from $17.47 to $17.35 per hour, albeit over a longer, 12 day time span), but the effect of its multiple composition ("piling" according to the Supreme Court language) leads to obviously false conclusion (like that $20 per hour rate is about the same as $0 per hour rate.)

 

6For instance, in U.S. v. Lopez (see [5]), the U.S. Supreme Court put Congress' fallacious practice of piling inference upon inference using another ubiquitous tool of federal usurpation, the notorious "interstate commerce" clause of the Constitution, to rest while declaring the Gun Free School Zones Act of 1990 unconstitutional. The Supreme Court wrote: "To uphold the Government's contentions here, we would have to pile inference upon inference [emphasis added] in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

 

7Presumption upon presumption is a fallacy similar to inference upon inference, although - as opposed to inference upon inference - it usually involves negation in the context of obligation. Both fallacies have long been discredited as means of reasoning by the U.S. Supreme Court, e.g., in  U S v. Ross, 92 U.S. 281 (1875).

 

8The term federal pre-emption refers to an extra-Constitutional legal doctrine; it does not occur in the Constitution or its Amendments. Whatever its origin, though, it would be utterly absurd (and unconstitutional) to assert that the Congress has the power to infringe upon constitutional rights/powers of the States and the people that were not expressly revoked by a constitutional amendment duly ratified by 3/4 of the State's legislatures. The very kind of "federal pre-emption" that judge Munley advocates equals to back-door revocation, by means of the enforcement provision of the 14th Amendment, of States and people's most basic constitutional rights and powers via unilateral legislative acts of Congress. If this is not endorsement of usurpation then nothing is. 

 

9Naturalization is not equal to Immigration, despite former use of sleek (and deceiving) name Immigration and Naturalization Service as if these two terms were inseparable.

 

10The Supreme Court confirmed (in U.S. v. Verdugo-Urquidez, 494 U.S. 259, 1990), that Fourth Amendment protections extend only to "the people", which the Court defined as "a class of persons who are part of a national [emphasis added] community [and not just immigrant community] or who have otherwise developed sufficient connection with this country to be considered part of that community" (see [10]).

 

10a(Added January 3, 2008) The Supreme Court indicated (in U.S. v. Verdugo-Urquidez, 494 U.S. 259, 1990), that an "[e]xcludable alien is not entitled to First Amendment rights, because `[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law' " (quotation from [10]).

 

11As long as they stay away from breaking the law and becoming "the accused". Interestingly, judge Munley bestowed the rights of "the accused in criminal prosecution" on plaintiffs only but not on the defendant, as he refused to apply 5th Amendment clause "to be confronted with witness against him" by granting anonymity to half of the plaintiffs who, subsequently, testified anonymously against the defendant.

 

12It appears that the only category of "the accused" outside of criminal prosecution that are never going to enjoy the presumption of innocence, or even are subject to presumption of guilt (guilty until proved innocent, that is), are those charged with racism. (See [14] for a discussion of these presumptions in criminal prosecutions.)

 

13By idealistic fallacy I mean here deriving "is" from "ought"; for instance, assuming that the law is not what it actually is but what it ought (in idealist judge's opinion) to be, or that a class of individuals (e.g., illegal aliens) do possesses the rights that (the judge thinks) they ought to have. [top]

 

 

Readers’ comments:  [...] excellent exposť on usurpation of power by the federal government [...]

 

Send your comments to:  readerswrite@yahoo.com.[top]

 

 

REFERENCES

 

[1] The Blessings of Liberty

http://oocities.com/readerswrite/commentaries/Blessings_of_the_Liberty.htm

 

[2] U. S. District Court
The Middle District of Pennsylvania

Lozano at al. vs. City of Hazleton, No. 3:06cv1586 (2007)

http://www.wbcitizensvoice.com/pdfs/hazletondecision.pdf

 

[3] Illegal Immigration Relief Act passed 

http://www.smalltowndefenders.com/public/node/6

 

[4] The Return of Dual Federalism:
A Historical and Contemporary Analysis of Supreme Court Jurisprudence

http://gladstone.uoregon.edu/~uofla/Winter00/Tauber.html

 

[5] U.S. Supreme Court
United States vs. Lopez, No. 93-1260 (1995)

http://www.law.cornell.edu/supct/html/93-1260.ZO.html

 

[6] The Camel's Nose In The Tent

http://camelphotos.com/tales_nose.html  

 

[7] Supremacy Clause Versus the Tenth Amendment

http://supreme.justia.com/constitution/article-6/06-supremacy-clause-versus-tenth-amendment.html

 

[8] The US Constitution Only Delegates the Power Over Immigration or Asylum to the States

http://federalistblog.us/2006/07/delegated_powers_immigration.html

 

[9] The Squalid 14th Amendment
http://www.freerepublic.com/forum/a38ae1fc86628.htm

 

[10] U.S. Supreme Court

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 88-1353 (1990)

http://72.14.253.104/search?q=cache:sEIzmbvLBHQJ:www.rkba.org/judicial/verdugo-urquidez.txt+%22the+people%22+%22a+class+of+persons+who+are+part+of+a+national+community%22+%22excludable+alien%22&hl=en&ct=clnk&cd=9&gl=us

 

[11] '86 Alito Memo Argues Against Foreigners' Rights

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/28/AR2005112801849.html


[12] Deportation Is Not A Penalty

http://oocities.com/readerswrite/commentaries/Deportation_is_not_penalty.htm

 

[13] Nonmonotonic Reasoning
http://www.cs.uky.edu/~marek/papers.dir/94.dir/encyclopaedia.pdf

 

[14]  The Burden of Proof

Note 1

http://oocities.com/readerswrite/commentaries/Burden_of_proof.htm#note1

 

FURTHER READINGS

 

Why Are Mexicans Populating The U.S.?

A brief analysis of the cause of Mexican population spill-over.

http://www.americanpatrol.com/GUESTCOLUMNS/DWYER/WhyAllTheMexis040831Dwyer.html

 

Fox's Call to Replace Americans with Mexicans

Exposes (not so) hidden agenda of Mexican ruling elite.

http://www.americanpatrol.com/GUESTCOLUMNS/DWYER/ReplaceAmersMex040622Dwyer.html

 

Stealing the American Dream

Claims that the “migrants” pre-empt a share of the surplus value that they are not entitled to, in the amount of roughly 25,000 dollars per "migrant" worker a year on the average.

http://www.canadafreepress.com/2007/dwyer013007.htm

 

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