“Trump Ratchets Up Threats on the Media” reads a New York Timesheadline this morning. It refers to Trump’s suggestion that CBS should lose its broadcasting license over its editing of an answer Democratic Party nominee Kamala Harris gave to a question during her recent 60 Minutes interview.
During the interview, Harris was asked pointedly whether the U.S. government has any sway over Israeli Prime Minister Netanyahu given the massive financial support it has given him in fighting Hamas. Based upon footage 60 Minutes released to Face the Nation, Harris responded with one of her signature word salads that failed to answer the question. However, what aired on the 60 Minutes broadcast was a succinct, one sentence answer that also failed to answer the question or really mean anything at all, but which made Harris appear less like the babbling nonentity her detractors say she is.
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Whether the edit was intended to help Harris or not is anyone’s guess. Of course, CBS denies its edit was misleading or so intended. And while Trump’s general complaint that the media treat him and his campaign with a completely different standard than they do Harris and hers, the 60 Minutes interview of Harris did not come off that way at all. Interviewer Bill Whitaker asked Harris challenging questions and pressed her with follow-up questions when her answers were unclear.
While Trump and his supporters have every reason to suspect there may be footage even more damaging to Harris than what was aired on the 60 Minutes broadcast, the interview was nevertheless a train wreck for Harris. The real question here isn’t whether CBS violated FCC regulations and should therefore lose its broadcasting license. It is, “Why is there a five-member board of bureaucrats who can make this decision at all?”
Trump and his surrogates have said things encouraging to libertarians and terrifying to the media about their supposed intention to dismantle the administrative state. In a video speech, he Trump promised to “dismantle the deep state and reclaim our democracy from Washington corruption.”
Those words in a vacuum would suggest he had a plan to undo the unconstitutional transfer of legislative power from Congress to the executive, born in the early Progressive Era and institutionalized by the New Deal, as well as reclaim executive power also usurped by federal agencies. However, what follows during the speech significantly waters down the promise of its opening statement.
No one has done more to secure free speech in the United States in the past several years than Elon Musk. By buying X, the social media platform formerly known as “Twitter,” Musk has provided a platform where content that would be banned or suppressed in virtually every other online space, including Twitter before Musk owned it, can be shared freely among subscribers. That alone is a great service to this country.
But both he and Tucker Carlson do Americans a disservice when they argue “free speech is essential to democracy.” It is not. Free speech is essential to individual liberty, not democracy.
The First Amendment to the U.S. Constitution protects free speech from the democratically elected Congress. Implicit in its protection is the idea that democracy is a danger to liberty in general and free speech in particular. Indeed, the entire Bill of Rights, along with all the so-called “checks and balances” (bicameral legislature, presidential veto, etc.) are there to protect us from democracy.
Musk’s own tweet of Tim Walz’s comments about free speech should make this clear to Musk. Democracy is what made Walz the Governor of Minnesota and the Democratic Vice Presidential nominee. It obviously wouldn’t protect us from Walz’s implied suppression of free speech should he achieve federal office. The anti-democratic First Amendment would.
This has nothing to do with the technical distinction between “a democracy” and “a republic,” either. Imagine a system where the people democratically elected representatives and those representatives could do anything they wished as long as they executed the will of the majority. That would be a republic, and it would be every bit as dangerous to liberty as a pure democracy.
That seems to be the system both Elon and Tucker have in mind when they refer to “democracy” and the importance to it of free speech. But it is not the system created in either the U.S. Constitution or any of the state constitutions. In all of those, the will of the majority is limited and not by their republican form but by their limits to the power of the government, regardless of the wishes of the majority.
Every newsworthy event prompts a narrative from imperial media and the Trump assassination attempt was no different. Rather than do what journalists purport to do, which is subject public officials to the blinding light of scrutiny, they immediately went into narrative mode. And the narrative chosen for this event was clear: free speech is dangerous.
There are various strains of this message. Some particularly TDS-affected propagandists have tried to blame Trump himself for the attack, saying it was his “extreme” political rhetoric that “raised the temperature” and somehow resulted in a 20-year-old malcontent deciding to shoot him.
Republicans dismiss this theory, of course, saying it has been the left’s nonstop demonization of Trump for the past eight years that drove the shooter to murder and drove thousands of more “mostly peaceful protestors” to loot, pillage, and occasionally assault or kill innocent people.
While the Republican version is more superficially plausible, it still rests upon the same assumption: that people using nothing more than words are somehow responsible for the immoral actions of others. This false premise cannot be allowed to stand.
Every individual is responsible for his own actions. Once you abdicate that position and place the responsibility for one person’s actions on another’s words, you no longer have a free society. You have agreed in principle that people in general cannot be allowed to be free; that there are some words or phrases they must not be allowed to hear. Thus, there are some words and phrases others may not be permitted to speak.
For all their talk about “democracy,” this has always been the fundamental premise of the progressives. They believe most people are incapable of self-government. They were much more explicit about it during the early Progressive Era when they were openly eugenicist. Today, those same instincts are simply clouded in euphemism and doublespeak.
They are all for “free speech” if it doesn’t threaten their rule. They are all for “democracy” as long as the right leaders are elected (here as well as abroad). Consider how absurd it is to suggest “democracy” must be saved from the candidate who gets the most votes. They say it and many still nod their head in agreement.
They don’t really believe the commoners are capable of managing a single aspect of their own lives. All must be “regulated” by the elite. And there is nothing more vital to regulate than what the commoners are allowed to hear, say, and think. This is why the media come on so strong and why people are deplatformed on the internet. Compelling the right thoughts is literally the entire basis of the establishment’s rule.
Enough people thinking the wrong thoughts could end it overnight.
“There are a thousand hacking at the branches of evil to one who is striking at the root.” – Henry David Thoreau
In LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL. (“Raimondo”) the Supreme Court of the United States overturned the “Chevron deference,” a doctrine dating to the 1980s that said in judging whether a regulatory agency had exceeded the authority delegated to it by Congress, courts must defer to the agency’s interpretation of any ambiguous language in the law.
This is being decried by liberals as a crippling blow to the federal government’s ability to regulate and lauded by conservatives as a welcome return to stricter obedience to the Constitution.
In reality, it is just more hacking at the branches by SCOTUS rather than striking at the root.
The root of the problem is Congress delegating any authority to make rules at all to the executive branch. The Constitution is clear that the legislative power is delegated exclusively to Congress, meaning any rules either prohibiting or requiring human action must be written by legislators elected for that purpose, passed by both houses of Congress, and signed by the president. Calling the rules federal agencies write “regulations” instead of laws doesn’t change anything. It’s still legislating and any person honest with himself knows this.
Congress has no constitutional authority to delegate this power to another branch of government. There is a legal doctrine older than Chevron expressing this called the “nondelegation doctrine.” SCOTUS referred to it in its decision on President Biden’s proposed Covid vaccine mandates. But rather than striking down Congress’ ability to delegate its legislative power to the executive, rampant since the New Deal, the Court merely ruled Congress can’t delegate this power too much.
Hacking at the branches.
This has been the case with all the supposedly monumental decisions by the supposedly “hard right” Court that includes three appointments made by former President Donald Trump. Presented with opportunities to confront three spurious legal doctrines from the 20th century that allowed power to be unconstitutionally transferred to the federal government in general and its executive branch in particular, the Court has largely affirmed these doctrines, merely massaging them differently to get results conservatives like.
The problem is that if even this Court, considered extreme by today’s standards, will not fundamentally enforce the nondelegation doctrine or strike down the Incorporation Doctrine, there will never be a chance to do so again.
This is a consent of the governed issue. It is not so much a matter of whether one or another of the particular laws or powers exercised are good or bad in a vacuum. It is a matter of who is exercising the power and how they acquired it. Our founding document preceding even the Constitution says government derives its just powers from the consent of the governed. And no one ever consented to the federal government striking down state laws or the executive branch legislating. On the contrary, the delegates at the constitutional convention emphatically denied the former power to Congress although proposed by Madison throughout the summer. The latter power wasn’t even considered as their separation was a foundation pillar of the constitution itself.
One of my favorite moments in the Star Trek movie franchise occurs near the end of Star Trek III: The Search for Spock. The details of the plot aren’t important here, other than that the Klingon villain, Kruge, played by Christopher Lloyd, is holding Kirk, Spock, and an Enterprise landing party hostage on a planet that is in the process of destroying itself. Kruge threatens to doom himself and his hostages if Kirk doesn’t surrender something called, “the Genesis Device.”
Spock, who had died in the previous film, has been brought back to life by the Genesis device but is aging rapidly because of it and must get off the planet immediately or die. When Kruge has the rest of the landing party beamed up to his ship as prisoners, the following exchange occurs between Kirk and Kruge:
Kirk: Take the Vulcan, too.
Kruge: No!
Kirk: But, why?
Kruge: Because you wish it.
Kruge doesn’t know what is happening to Spock or why Kirk has an interest in getting Spock off the planet, especially considering he’d be Kruge’s prisoner. He only knows Kirk wishes it and anything Kirk desires is likely against his own interests.
What a wonderful analogy for so many of the figures who have stood up to oppose the Washington, D.C. empire over the past several years. I don’t agree on much with Donald Trump, Lauren Boebert, Marjorie Taylor Green, Matt Taibbi, Glenn Greenwald, or Bari Weiss. But it is apparent the empire fears and loathes these people and will do anything it can to destroy them.
Therefore, I am inclined to do whatever I can to defend them against the empire’s attacks. Should the empire deign to ask why I wouldn’t allow this collection of mercantilists, socialists, and statists (but I repeat myself) to be crushed, my answer is the same as Kruge’s:
“Because you wish it.”
The latest in this cast of opposition characters is self-described socialist Elon Musk. Musk claims to have purchased Twitter primarily to change its content moderation policies to allow for freer speech, something he claims is essential to “democracy.”
That all sounds wonderful to the average, miseducated American and there is good reason to believe Musk is sincere. He spent $44 billion on a company that currently makes $5 billion in gross revenues – and loses money. No likely combination of revenue growth or cost cutting will make this a wise business investment anytime soon.
Taking Musk at his word, it is worthwhile to unpack just what Musk is championing. On one hand, anything the empire is opposing this strenuously is on its face a good for the rest of us. But we should have open eyes about what Musk is offering in its place. There are several assumptions most people take for granted that need to be challenged. They include free speech, democracy, and liberty.
Musk evidently shares the empire’s stated ideal of democracy as an end in itself. In deciding whether to allow former President Trump to return to Twitter, Musk held a Twitter poll. When it came out in favor of allowing Trump’s return, Musk tweeted the results with the Latin phrase, “Vox Populi Vox Dei (“the voice of the people is the voice of God”).
Of course, the American system has never assumed democracy is an end in itself. On the contrary, it includes many anti-democratic elements alongside the democratic ones. The reason for having a bicameral legislature, presidential veto, independent judiciary, and Bill of Rights is to protect individuals and constituent polities from democracy.
That’s what makes Musk’s Trump poll so ironic. He suggests a majority vote has something to do with free speech when the First Amendment was written to defend free speech against democracy. The 2nd Amendment was written to protect the right to keep and bear arms against democracy. And so on with all ten amendments in the Bill of Rights, the last to protect individuals from the accumulation of power even in one, central government, however democratically elected its representatives.
The biggest news coming out of the midterm elections is the failure of the Republican Party to win a more decisive victory. They had predicted a “red wave” since well back into 2021 (an immediate reason to be skeptical) but will at best have a modest advantage in the House and a razor thin majority in the Senate.
Not only were the Republicans denied a resounding victory, but the Democrats did better in a first term midterm election than either party has while holding the White House in decades. There is no denying this was a good night for the Democrats.
This has many scratching their heads. This election was supposed to be, at least in large part, a referendum on the massive damage done to the American economy and society in general by Covid tyranny imposed by Democrats. “Never forget what they did to you” said many a meme on social media in the days before the election, especially after Emily Oster’s infamous plea for amnesty.
There is only one problem with that narrative. Covid lockdowns and other mandates were, with a few notable exceptions, largely bipartisan.
Where resistance won
Where it was possible for Covid lockdowns to be put on the ballot, they were. Governor Kristi Noem, who never locked down her state a single day in 2020, improved upon her three-point victory in 2018 with a thirty-point trouncing of her Democratic rival on Tuesday.
During her victory speech, she said, “Here in South Dakota, we protected your constitutional rights. I trusted in you to use personal responsibility and take care of each other.” The vote totals speak for themselves.
The less libertarian but more well-known Governor Ron DeSantis of Florida also won in a landslide in traditionally purple Florida. Desantis was elected by a razor thin margin in 2018. As governor, he famously convened a panel of non-government epidemiologists in September 2020 and dropped all Covid restrictions based on their televised recommendations.
Governors Gregg Abbot of Texas and Kim Reynolds of Iowa, both of whom dropped Covid restrictions in early 2021, were re-elected by comfortable margins. Senator Rand Paul, who grilled Fauci during multiple congressional appearances, also won easily.
By contrast, Republican Lee Zeldin, whom some polling indicated had a real chance to defeat incumbent Democrat Kathy Hochul in deep blue New York, didn’t really compete on Tuesday. He was forced to campaign mostly on traditional Republican tough-on-crime talking points because that’s all he could do. He certainly couldn’t run a strident anti-lockdown campaign after failing to question lockdowns at all during 2020.
It is one week until the U.S. mid-term elections and some members of the Regime seem worried that, for once, elections might actually have consequences. The smart money still says that if there is a “red wave” on November 8, Republicans will enter Congress next January and do precisely nothing about what has happened to the American people over the past 32 months. Criticism of the Ukraine War is as likely to be of the “Biden is not tough enough on Putin” variety as it is cutting off the Ukraine Gravy Train to Lockheed Martin and Raytheon.
Still, there are some signs insiders are worried something different may be afoot, as demonstrated by the plea for “amnesty” in The Atlantic by Covid Regime propagandist Emily Oster. According to this alternative reality take, “We need to forgive one another for what we did and said when we were in the dark about COVID.”
No, “we” need do no such thing. The lies, tyranny, and aggression all ran one way during the pandemic – towards those who, it turns out, were never “in the dark.” Whether those mandating lockdowns, masks, and later vaccines were honestly mistaken – “mistaken” seems wholly inadequate here – or acting in bad faith and with malice aforethought should be the subject of a formal investigation.
We have been subjected to six straight years of investigations into hoaxes and hobgoblins, from the nonexistent “Russa collusion” to the inconsequential Ukrainian “quid quo pro” to the farcical “insurrection.” It is past time for an investigation into the real crimes against humanity perpetrated against the American people under the pretense of fighting Covid-19.
Such an investigation would include sworn testimony as to the origins of the virus itself, whether or not data supporting lockdowns and vaccine mandates were knowingly corrupted and/or whether data contraindicating same were knowingly suppressed.
The existence of alternative treatments for Covid would have legally prohibited the issuance of any Emergency Use Authorization (EUA) for the Covid vaccines, developed in record time under the government program known as “Operation Warp Speed.” Were alternative treatments prohibited and their proponents deplatformed to ensure these EUAs could be issued? Did people die who otherwise could have been successfully treated had these alternative treatments been made available?
These questions need to be answered. Both Anthony Fauci and his co-conspirators along with deplatformed experts like Robert Malone, M.D. and Peter MCullough, M.D. must be put under oath and questioned, preferably on live television so the American public can judge for themselves who is telling the truth and who is not.
Throughout 2021, Rep. Thomas Massie publicly asked the CDC to change information on its website indicating the Pfizer mRNA vaccine was effective for those previously infected with Covid-19 because the FDA’s review of Pfizer’s clinical trial data clearly showed it wasn’t (pg. 30). To this writer’s knowledge CDC website was never corrected. The Pfizer vaccine was among those later mandated by President Biden for large swaths of the U.S. workforce.
Massie, those he spoke with at the CDC, and the person(s) responsible for refusing to correct the false claims must be put under oath and questioned. If fraud was committed, charges should follow.
These are just a few of the egregious lies, distortions, and obfuscations perpetrated against the public in support of the Covid Regime. Studies in support of the government mandates were intentionally flawed. Even the integrity of the data has been called into question. Both freedom and the future of science itself depend upon these issues being settled once and for all via an adversarial process with penalties for lying.
The government response to Covid-19 was the most egregious assault on liberty in modern history. Hundreds of thousands of businesses closed forever. The U.S. economy is approximately 5 million jobs short of the number that would have been created to employ its growing population had the lockdowns never occurred.
An as yet unknown number of people died as a direct result of lockdowns and vaccine mandates. That number must be established and those responsible for the deaths held accountable if the investigation shows they acted in bad faith.
We are constantly regaled with the vapid, “we must ensure this never happens again” after a mass shooting or other tragedy, always in support of new government power that will punish the innocent and do nothing to achieve the stated goal.
For once, that hackneyed appeal is appropriate. What must never happen again is the dystopian nightmare visited upon Americans by their federal, state, and local governments over the past two years. The only way to ensure that is to hold those responsible for it accountable. It is time for due process, not amnesty.
** FILE ** In this Sept. 18, 2001 file photo, a red crane looms over the smoldering wreckage of World Trade Center Building 7 in New York. Federal investigators said Thursday they have solved one of the undying mysteries of the Sept. 11, 2001 attacks: the collapse of World Trade Center building 7, a source of long-running conspiracy theories.(AP Photo/Roberto Borea, File) ORG XMIT: WX104
There are two camps in the 9/11 war. Both are wrong. As a result, almost no one learns anything from the tragedy that occurred on and after September 11, 2001.
One camp is the “never forget” crowd. These are the proponents of Washington, D.C.s’ imperial, worldwide standing army. They insist people never forget the terrorist attacks because…well, it’s not entirely clear why we shouldn’t forget. Something about being vigilant, because “freedom isn’t free.” Or something.
It’s just a lot of fuzzy baloney used to justify massive military spending, the empire’s war or intervention du jour, and convince the gullible who join the military they are defending freedom, as if Americans would be less free if the empire didn’t invade Iraq, or Afghanistan, or Syria, or…
The other camp is the “truther” camp, convinced that because the government lied about a lot of things regarding 9/11, that those lies prove the attack was “an inside job,” perpetrated by the Bush administration and/or the Deep State to justify the decades of aggressive war abroad and totalitarianism at home that followed it.
Both camps conjure up villains people can blame for ills they ultimately brought upon themselves, at least in the aggregate.
First, the “never forgetters.” Are there any who aren’t somehow connected to the bloated, $800 billion/year and growing cancer called the U.S. military? Or at least believe the myth perpetuated in this nauseating Lee Greenwood song:
“And I’m proud to be an American, where at least I know I’m free
And I won’t forget the men who died, who gave that right to me
And I’d gladly stand up next to you and defend her still today
‘Cause there ain’t no doubt I love this land! God bless the U.S.A.”
It’s hard to get more wrong about “America” than those lyrics. First, the American principle is that freedom is a natural right, “endowed by our Creator.” It is not given by anyone, least of all soldiers consuming taxes in an unnecessary war. Not only was the freedom of Americans not in jeopardy during any war in my lifetime (born 1965), none were even “defensive” wars.
Goebbels couldn’t have penned better propaganda nor a bigger lie than this million-selling drivel.
Americans would have been far better off if the entire Cold War national security state were dismantled in 1991, including the global standing army – as Americans were promised it would be – and no wars fought in the past thirty years.
They would have been better off still staying out of WWII and letting the Nazis and Soviets destroy each other, instead of handing one evil empire half of Europe in its zeal to destroy the other.
Instead, the Cold War apparatus was redirected towards terrorism, its military and economic interventions in the Middle East provoking the 9/11 attack.
That brings us to camp #2, the “truthers.” A lot of these people are well-intentioned and have what the never forgetter crowd lacks: a healthy skepticism of their government and of government in general. But their zeal to prove government is evil (which it is) leads them to make improbable conclusions and ignore other explanations that fit the available facts much better.
The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.
Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.
The legislative power
In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.
In other words, when the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” it means no legislative powers are vested in the executive.
Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.
Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.
The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.
(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).
The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.
Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.
The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.
The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).
The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.
Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.
Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.
Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,
That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;
Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.
Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.
Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”
Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.
As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.
While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.
If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.
This is no way to conduct civil society.
The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.
If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.
It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.
To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.
If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.
