I was asked what I thought of the latest strike against local municipal government's sole and absolute right to pass and enforce laws they deem proper and necessary for their communities well being and happiness. Specifically, I was asked to address judge John Houston's TRO (temporary restraining order) against the City of Escondido ("Defendant") in enforcing its new Ordinance No. 2006-38 R, Chapter 16E of the Escondido Municipal Code.
While I have only less than thirty minutes to devote to analyzing judge Houston's order, I will highlight the obvious faults and outright silliness that prevails under today's misguided federal jurisprudence.
Probably the most nonsensical thing judge Houston wrote was: "This Court also finds that Plaintiffs Roy and Mary Garrett will likely suffer irreparable harm because as landlords, they would be exposed to an imminent threat of litigation arising from the enforcement of the Ordinance as it presently reads."
Imagine getting a federal judge to grant a TRO in suspending your local drunk driving laws on the grounds that you could end up being "exposed to an imminent threat of litigation arising from the enforcement" of such drunk driving laws, as they presently read, in the event of being caught driving while drunk. Such a nutty statement might even give Justice Stevens pause.
Reading further I find (not unexpectedly), that the plaintiffs argue the Ordinance violates the supremacy clause because the Ordinance impermissibly attempts to regulate immigration. The judge points out a tired and completely debunked fable in order to give the supremacy clause charge some validity by pointing out an old Supreme Court line that says the "[p]ower to regulate immigration is unquestionably exclusively a federal power." Essentially when a court cites this line they are parroting DeCanas v. Bica (1976), which in return is citing Henderson v. Mayor of New York, aka the Passenger Cases.
But in the Henderson v. Mayor the court came to no such conclusion, instead, this court focused on New York law that focused on ship owners under the commerce clause and not the federal regulation of immigration. In fact, there was no way the Supreme Court could have ruled that immigration was "unquestionably exclusively" a regulation of federal law because it was widely seen - and correctly so - to be the sole domain of the individual States.
Heck, a few of the rebel State constitutions drawn up by the same Congress who passed the 14th amendment included provisions for exclusively regulating all aspects of immigration within State jurisdiction. One of the justifications for independence from Great Britain was so individual States could regulate immigration themselves - for which such right was preserved under the current US Constitution by not delegating the power to Congress. Congress was only left with establishing uniform rules for naturalization, not the regulation of immigrants entering or residing within State jurisdictions.
Furthermore, in Henderson the court specifically stated that States can "rightfully pass" laws on immigration! How the hell anyone can conclude from the Passenger Cases that the power to regulate immigration is "unquestionably exclusively" belongs to the federal government, is sipping some mighty potent Kool-Aid.
I should also add that State and local immigration laws do not determine who can, or cannot, enter the country. Rather, they affect only who can enter or reside within their respective local jurisdiction, for which the federal government has no plausible jurisdiction to intervene. Since the federal government has no jurisdiction to enact immigration laws under the Constitution, invoking the supremacy clause is futile because the US Constitution requires federal laws to be in pursuance of the Constitution. Federal immigration laws are in pursuance of nothing delegated to Congress to exercise.
Judge Houston's TRO goes on to make a lame, and unconvincing, Due Process argument against Escondido's Ordinance. The fourteenth amendment did not leave it to the federal government to decide what procedures of law are adequate or not. It only requires that State actors do not enact any laws that would deprive anyone of procedures of law in the deprivation of life, liberty or property for acts made a crime, and that those procedures are equally applied to all.
In this particular case all you have is rights advocates unhappy with the people of Escondido rightfully enacting laws they feel is important for their community. This isn't a fourteenth amendment issue by any stretch of the imagination.
My time is up on this particular topic, and I'll close by adding that Escondido's Ordinance does not run afoul with any provisions of the US Constitution. Of course, it may well run afoul with the federal judiciary's idea of justice, but with such a misguided judiciary as ours, who would be surprised?
Thanks, BooHoo.
How can we, as ordinary citizens, use this information to right wrongs made by judges?
How do we reverse a TRO in Escondido? How do we correct misinterpretations of the birthright clause in 14th?
Dear Hatch:
See these articles by Madison :
http://www.federalistblog.us/mt/articles/14thdummyguide.htm
http://www.federalistblog.us/2006/11/hazletondeclarationof__independence.html
His dummies guide on the 14th is fantastic history and the best review of the 14th there is, even if it is still in drafting stages.
Thank you for posting the above. I am a resident of Escondido and I fully support the ordinance.
I need clarification, in simple terms, about just who has the specific authority to regulate immigration. Did I read you correctly to say that the States have that authority and not the federal government?
I understand the IX and X Amendments. I also understand Article 1, Section 7. But, what you say seems to conflict with laws tumbling down from the Capitol steps.
This is important to those of us in the border states. I am seeking a clear understanding for the purpose of forming a movement to undo the damage done by federal courts, in re Prop 187, and California’s demands for compensation for border enforcement costs and our generally being told we have no authority to make or enforce laws relative to illegal immigration.
Please help a simple mind to understand.
Hatch.