Nullifiers and Refugees

We went over the Nullification Crisis in class today.

For those of you not up on the latest installment of Episodes of 19th-Century Treason, the Nullification Crisis essentially boiled down to a dispute over the federal Tariffs of 1828 and 1832, both of which South Carolina did not like and tried to shirk, much to the outrage of President Andrew Jackson who at one point came very close to invading South Carolina and executing the ringleaders of this little plot personally.  You know he would have, too, if South Carolina had not backed down.

The central question at the root of this dispute – once you have gotten past John C. Calhoun’s specious theory of “concurrent majorities,” which for some reason retains a certain amount of popularity among those who have little to no understanding of American constitutional theory or practice – is the precise nature of the Union established by the Founders when they wrote the Constitution in 1787.

There were three basic positions taken on this issue during the Nullification Crisis.

Nullifiers, such as Calhoun, insisted that the states were sovereign and their authority outranked that of the federal government in all things.  If that were so, they argued, the states could then veto – or “Nullify” – any federal law that they did not like, and once that happened that federal law would be unenforceable on that state’s territory.  In essence, Calhoun was arguing that the Union was still what it had been under the Articles of Confederation – a loose confederation of sovereign states much more like the modern UN than an actual nation – and that the Constitution had never really happened or, if it had, that it hadn’t actually changed anything. 

Why the Founders had gone to the trouble of creating the Constitution at all, if that were so, he didn’t say.

Nationalists, such as Daniel Webster, argued that the federal government was absolutely sovereign.  Its power outranked the states in every particular, and therefore the federal government could do anything it wanted to the states.  In essence, Webster was arguing for a Union along the lines of the Virginia Plan that had been introduced at the Constitutional Convention and had nearly carried the debate there, a Union that would have preserved the states as mere administrative units in a nation run entirely by a dominant central government. 

Webster managed to overlook or forget entirely the fact that the Virginia Plan did not actually emerge victorious from the Constitutional Convention, however – that it was met first with the New Jersey Plan, which proposed a new constitutional arrangement remarkably similar to the Articles of Confederation that already existed, and then with the Great Compromise, which gave us the Constitution we actually have.

Moderates, such as Andrew Jackson (and really, how often does Jackson get to be described that way?) argued that the Constitution had created a government where the states had a certain amount of sovereignty and the federal government had a certain amount of sovereignty and you had to look to the Constitution to figure out what was what. 

On state or local issues, Jackson and other moderates argued, the states retained their sovereignty and the federal government had no right to interfere.  What counted as a state or local issue was a matter of some debate – roads and banks were controversial in 1832, for example, though criminal justice was generally seen as well within the sovereignty of the states – and on pretty much any matter where there was doubt Jackson was willing to default to the states in a way that, say, John Quincy Adams (his predecessor as president) had not been so willing.  The principle remained, however: some things belonged to the states, and on those issues the federal government did not have jurisdiction.

On things that the Constitution defined as national issues, however, the federal government was sovereign and the states had no authority whatever to modify or reject what the federal government mandated.  It was simply not the place for the states to interject their views into issues such as defense, international affairs and diplomacy, interstate commerce, or – in the most relevant issue at hand – tariffs.  Those belonged to the federal government.

Jackson was right, of course. 

The Virginia Plan had been rejected and never put into place.  And the whole point of the Constitution was to reject the Articles of Confederation and its notion of state sovereignty.  The national government of the 1780s had foundered on the rock of states’ rights, and the Constitution was written specifically to rein them in.  Article 6, Clause 2 (known as “the Supremacy Clause”) states that “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.”  Federal law trumps state law in all areas where the federal government has the right to make law, in other words.

The Constitution also explicitly grants to the federal government the power to levy tariffs, thus correcting one of the other flaws of the Articles (which did not actually give the national government any source of income).  And according to the Supremacy Clause, no state has the right to disobey or Nullify that law.

The Constitution, it turns out, also grants to the federal government complete sovereignty over all aspects of foreign policy, both  military and civilian.  There is one United States, and it presents one face to the world.  You can’t run a nation with 13 different foreign policies.

Or fifty.

Because foreign policy also includes immigration in all of its many forms, which was not a great concern in 1832 but which seems to have become one here in the 21st century in our current disgraceful controversy over accepting Syrian refugees.  And the lessons of history have been forgotten in more ways than one.

The federal government has absolute sovereignty when it comes to immigration.  The states have no say whatever over who gets to come into the United States, and this has been repeatedly confirmed by the Supreme Court.

Hines v. Davidowitz (1941), for example, notes that:

[T]he supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787 and has since been given continuous recognition by this Court.  … The Federal Government, representing as it does the collective interests of the [then] forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties…. Our conclusion is that appellee is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.

This was confirmed in Arizona et al v. United States (2012):

The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. …

In other words, for those slow on the uptake, mere governors do not get to have any say over who gets to come to the United States.  It does not matter how many governors make that claim, nor does it matter on what basis they make that claim.

And no, the Tenth Amendment does not apply here, thank you.  I’m familiar with the Tenth Amendment.  It’s a lovely Amendment, yes it is.  Power over immigration is, in fact, “delegated to the United States by the Constitution,” however, which means that this Amendment is not the controlling legal authority in this matter and no amount of wishful thinking, hand-waving argument, or Fox News propaganda will change that.  Please don’t send me Tenth Amendment nonsense.

The power to regulate all aspects of immigration – including refugees – rests solely with the federal government.  Specifically, the statute that currently governs this issue is the 1980 Refugee Act, which gives broad powers to the president to make decisions regarding the acceptance and settlement of refugees in the US.  Congress can take that away and make new policy, should it actually decide to be anything other than the dysfunctional sinkhole of taxpayer money and right-wing ideology that it has become since the GOP took it over, but the governors don’t have any role to play there. 

Sweet dancing monkeys on a stick, people, when even Florida Governor Rick Scott can figure that out (“It is our understanding that the state does not have the authority to prevent the federal government from funding the relocation of these Syrian refugees to Florida even without state support,” he wrote on November 16 in a letter to Congress asking them to do something about it), how hard can that point be?

Nor do governors get to have any say over where immigrants (including refugees) go once they get here.  There is nothing in the Constitution or American law that says states have the right to close their borders to people who have committed no crimes in that state.

And thus we come to the depressing situation the nation finds itself in now, with 26 governors by last count – all but one of them Republican, oddly enough – loudly pandering to the ignorant and the fearful by declaring that they will not accept Syrian refugees into their states.

I’m not going to go into the obvious parallel with the American refusal to accept Jewish refugees in the years leading up to the Holocaust.  The conclusions there are pretty straightforward, and if you want to be on the side of the Nazis well you just go right on ahead and do that, but don’t expect much sympathy from the rest of us.

Nor am I going to discuss the pernicious and hollow meme that floats around conservative circles these days about how we should be putting our efforts and money toward the care of veterans rather than refugees.   Honestly, given the consistent track record the GOP has for gutting and blocking any piece of legislation designed to help veterans once they are no longer blowing things up in foreign countries – well over a dozen different pieces of legislation in the last eight years, all of which are easy to track down and verify – I’m genuinely sick and tired of hearing it.  They didn’t give a damn about veterans before the attack on France, and they don’t really give a damn about them now.

I don’t really want to go into the issue of how the fears of terrorism compare to the actual reality of gun violence in this country.  As one C-SPAN commenter named Robert Walker posted on November 15, “Terrorist?  We had someone walk into a school and kill 20 little children and we did nothing about it.  What could terrorist[s] do to us that we don’t do to ourselves?”  And it’s more than a little ironic how all of the Syrian refugees are being blamed for the terrorism of a few (who it turns out might not have been Syrian anyway) by the same people who insist that you can’t blame all gun owners for the actions of a few madmen.

I suppose I could go into the sickening cowardice that these governors and their supporters display, running in blind terror from widows and orphans.  Refugees are the most thoroughly vetted people in the world, which is why not a single one of the more than 700,000 refugees settled in the United States since 9/11 has been arrested on terrorism-related charges, according to The Economist.  (The Cato Institute - one of the more right-wing institutions in the US and one that gets a lot of funding from the very same Koch Brothers who own my governor - puts those figures at over 850,000 refugees and three arrests, which frankly doesn't change the situation much at all.)  And yet we fear.

This fear is unworthy of us as Americans.

And that’s all I have to say about that.

Mostly it is the issue of governors usurping federal power, of claiming authority that they do not have under the Constitution, that I choose to discuss here.  These governors, most of whom would like you to believe that they worship the very paper that the Constitution was written upon, have clearly never read that document and have no use for it other than as a club to beat opponents with.  They and the horses they rode in on are hereby cordially invited to find other ways to entertain themselves.

We are surrounded by Nullifiers, political leaders who in the best case scenario are willing to pander to the fearful and the ignorant by openly defying the Constitution and the law, and in the worst case scenario actually believe the nonsense they spout.  Those Nullifiers, like the ones in 1832, are woefully out of step with American values and institutions, but nevertheless popular among those of similar inclinations.

More and more I fear for the survival of the American republic.