Wait: let me get this straight. It’s legally binding for two underlings in the civil rights divisions of the Departments of Education and Justice to send out a “Dear Colleague” letter declaring that, as these bureaucrats interpret Title IX of Congress’s Education Amendments of 1972, colleges and universities can’t get any federal funding if they don’t make special accommodations for transgendered students, however defined; but it is not legal for the president of the United States, pursuant to the Constitution’s injunction that he ensure that the laws “be faithfully executed,” to deny some federal funding to cities that declare themselves “sanctuaries” from federal immigration laws, and that accordingly forbid their officials from cooperating with federal authorities in implementing them, as Congress has demanded?
Such is the implication of federal Judge William Orrick’s ruling in California this week that it is unconstitutional for President Donald Trump to attach conditions to federal funding to such sanctuary localities. After all, the president was merely enforcing compliance with the law of the land in a much more straightforward manner than the two functionaries who threatened to withhold federal funding if colleges failed to satisfy every whim of transgendered students.
To be sure, defeated presidential candidate Hillary Clinton, churlishly flouting America’s long tradition of gracious acceptance of electoral results and the seamless transfer of power from one administration to the next, called on her supporters to “resist, insist, persist, enlist” in her opposition to Trump and the GOP-dominated Congress. And few have heeded her call as substantively as leftish federal judges, who all seem to imagine themselves as even more heroic defenders of blue-state orthodoxy than Senate minority leader Chuck Schumer himself.
But the “Resistance,” as the anti-Trump left styles itself, is sailing into very dangerous waters, where earlier negationist movements have foundered. Do these pro-illegal-immigrationists really want to follow the nullification movement of the 1830s, when South Carolina toyed with the idea that it could reject a tariff passed by Congress, because it weighed so heavily on that state’s economy? Nullification advocates, led by John C. Calhoun, who had resigned the vice-presidency so as more effectively to oppose the tariff from the Senate, appealed to the Kentucky and Virginia Resolutions written, respectively, by Thomas Jefferson and James Madison. The Kentucky Resolution described the 1798 Alien and Sedition Acts as being “void and of no force” in that state, though the state legislature didn’t dare use Jefferson’s original language that its resolution constituted a “nullification” of the acts. Madison’s Virginia Resolution was merely hortatory, and he was aghast to hear Jefferson declare explicitly that he was willing to have the two states secede from the Union in response to the acts of John Adams’s Federalist-dominated Congress. But of course Calhoun and other Southerners caught the separatist implication of Jefferson’s Kentucky Resolution and claimed that their nullification had the sanction of the Founding Fathers. President Andrew Jackson caught their drift and rightly predicted that “the tariff was only a pretext, and disunion and southern confederacy the real object. The next pretext will be the negro, or slavery question,” which a generation later ignited the Civil War.
Constitution-architect Madison’s vision of how federalism would work imagined that state judges and municipal magistrates would enforce state laws and local ordinances, but judges at all levels, state as well as federal, would be bound to enforce federal laws—which makes Judge Orrick look particularly unmoored in the Constitution. So serious an infraction did Congress consider the Nullification Crisis of the 1830s that it passed a law authorizing military force to compel the two balky states to abide by its tariff. The states found a face-saving way to back down, and the crisis subsided but never vanished.
It’s hard not to think of the officials of San Francisco and of Santa Clara County, or New York City Mayor de Blasio, without recalling this shameful and dangerous episode in U.S. history. It’s also hard not to recall Alabama Governor George Wallace’s refusal to accept the Supreme Court’s 1954 school-desegregation ruling and allow black students to register in his state university. In the end, President John F. Kennedy federalized the Alabama National Guard and sent Assistant Attorney General Nicholas Katzenbach to stand at their head, forcing Wallace to step aside and stop blocking the university doorway, so that black students could enter.
Is that how San Francisco Mayor Ed Lee or Mayor de Blasio or other leaders of “sanctuary cities” really want their “resistance” to the law of the land—and immigration law is a federal responsibility—to end? If so, they are playing with fire.
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