City of Hazleton: Judge Munley v. U.S. Constitution

The court had consistently laid down the same rule as Hamilton outlined. In the License Cases for example, the court effectively said if you want invalidate some State law under the preemption doctrine the burden is on the plaintiff to point to the clause in the United States Constitution that exclusively delegates Congress the authority to make the law, and point to the express prohibition against the States to touch it. Simply having two conflicting laws is not enough; the burden is on the Federal Government to show its law is in pursuance to the Constitution and that it is an area expressly prohibited to the States to act upon, and thus, giving the law national supremacy.

Scenarios for which the Federal Government can claim supremacy is very limited by design under our form of republican government. James Madison Jr. explained local “inviolable sovereignty” this way:

[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority is subject to them within its own sphere. In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all objects.

Jefferson said, “With respect to everything external, we be one nation only, firmly hooked together. Internal government is what each State should keep to itself.” The court in United States v. Reese said:

Within its legitimate sphere, Congress is supreme;… but if it steps outside of its constitutional limitations, and attempts that which is beyond its reach, the courts are authorized to annul its encroachments upon the reserved power of the States and the people.

To support federal preemption in matters of immigration, federal court’s enjoy quoting without question DeCanas v. Bica that said the “[p]ower to regulate immigration is unquestionably exclusively a federal power.”

At first blush, that would appear to make a strong case for the Federal Government to claim preemption. The trouble though is it is entirely made up.

The phrase comes from the old Chinese Exclusion Case, where the court said the “power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.”

Note that the court was careful to say only the power to exclude was an incident of sovereignty belonging to the national government, i.e., an act in preserving the tranquility of the nation.

It would not be an incident of sovereignty to force any number of foreign people upon the States, leading to the disturbance of the nation’s tranquility. Besides, the court had already ruled before that the admittance, or expulsion of persons within a State was an absolute power only belonging to the State.

The States never did surrender their absolute authority over persons within, or invited into from the outside, as they retained “residuary and inviolable sovereignty” over all objects not surrendered to the federal government. Because of this “residuary and inviolable sovereignty,” States can impose stringent rules and taxes on aliens entering their respective limits. Even post Fourteenth Amendment adoption, John Bingham acknowledged the States inherent right to impose head taxes or banishment laws in regards to aliens.

I will let Alexander Hamilton have the final word here:

But it will not follow from this doctrine (supremacy) that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

Due Process

Judge Munley suggested Hazleton’s IIRA ordinance is unconstitutional because “the IIRA does not provide notice to challenged employees or tenants, does not inform the employers and owners/landlords of the types of identity information needed, and provides for judicial review in a court system that lacks jurisdiction, it violates the due process rights of employers, employees, tenants and owners/landlords. It is therefore unconstitutional.”

It has always amazed me how the courts in modern times can misapply such an ancient, well-understood principle as due process, for which has been part of the U.S. Constitution for over 200 years. For which the same identical language had been imported into the Fourteenth Amendment, and made clear that it carried the same operation as it had always, could be applied by the courts to operate in an entirely different manner then had always before.

This is not justice or judgment, but judicial tyranny.

The terms "due process of the law" and "by law of the land" has always been recognized as being identical imports from Article 39 of the Magna Carta (1215). The Fourteenth Amendment’s primary drafter of the first section, Rep. John A. Bingham (OH), said the amendment changed nothing in regards to whom the phrase inhibits under the first section of the fourteenth article of the U.S. Constitution. Due process is only a limitation upon the executive officer or the courts, not any legislative body.

The Fourteenth Amendment does not prohibit any State legislature, or municipal government from operating under their own laws of due process, nor gives any power to Congress or the federal courts to impose their own idea of procedures of due process as they please. Instead, the language is simply a declaration that whatever those general laws of the State may be, they cannot be denied before depriving anyone of their life, liberty, or property.

The court in Hurtado v. California described due process under the Fourteenth Amendment this way:

In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

Due process, or “by law of the land,” protects individuals from being deprived of life, liberty or property by arbitrary acts unsupported by existing laws. No arbitrary deprivation or penalties are sanctioned by Hazleton’s ordinance in question.

What Hazleton has done is simply enacted a summary process that has always existed under statute laws, and extended to private parties. For example, landlord’s have long enjoyed summary procedures authorized under law in taking possession of demised premises and property within by the prompt dispossession over tenants who hold over after default in paying rent.

Does such a summary process as approved by statute violate anyone’s “due process”? No because the process is sanctioned by law. Some tenants might not like it, but they have no constitutional grounds to invalidate the statutes in question under some twisted ruse of violating due process.

Police Powers

Under plaintiffs’ ninth cause of action, they alleged Hazleton’s ordinance exceed its legitimate police powers. Hazleton responded the ordinance was a legitimate exercise of its police powers.

Judge Munley concluded that because Hazleton had violated the Constitution elsewhere, they in return exceeded their police powers because “enacting an unconstitutional ordinance is in itself a violation of the defendant’s police powers.”

Police powers used to be held sacred and beyond encroachment under any pretense - even after the adoption of the Fourteenth Amendment. So when did the people surrender their authority over local order and security, or more importantly, where can it be found documented through consent of the people?

It is this “inviolable sovereignty” that Madison spoke of is why all leading statesmen of this nation and Supreme Court went to great pains to make clear that all internal domestic concerns, especially those of internal security (police), were beyond approach of federal encroachment under any pretense.

To guard, however, against any possible misconstruction of our views, it is proper to state, that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the states in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the states; and has never been conceded to the United States (Prigg v. Pennsylvania)

Justice Grier’s affirming opinion in a much-cited case in recent immigration case law (The Passenger Cases, 48 U.S. 283, 7 How. 283) wrote:

This right of the States has its foundation in the sacred law of self-defense, which no power granted to Congress can restrain or annul. It is admitted by all that those powers which relate to merely municipal legislation, or what may be more properly called the internal police, are not surrendered or restrained.

One doesn’t need to look for Supreme Court rulings to come to the same conclusion as Justice Grier did, for this inviolable principle shines as a bright beacon due to the fact of being deeply embodied in events of our history and expressed throughout the U.S. Constitution. The same Congress who introduced, debated and adopted the Fourteenth Amendment firmly shared the same conclusion as Justice Grier after it was made part of the Constitution.

Austin Blair (MI), a strong advocate for the adoption of the Fourteenth Amendment and human rights activist, had this to say about federal encroachment on local matters on April 19, 1871:

If gentlemen say that the powers of the General and State governments for the protection of life, liberty, and property are concurrent and that we can go everywhere throughout the United States and do by the General Government everything that can be done by any State government, then I grant this power might exist; but until I am shown that, I am unable to see it. As I have said, I have always supposed that there were certain powers and certain rights that belong to the States that the General Government has no right to interfere with. This right of local self-government, as I supposed, it was not the intention of the Constitution of the United States in any case to take away from the States, and I cannot see how it is possible that this power could exist without taking it away.

The chairperson of the Senate Judiciary Committee, Lyman Trumbull in the same year: “I do not know where in the Government of the United States gets the constitutional authority to go into the States and establish police regulations.” James Garfield went on to add:

These systems of local government by counties and cities are adopted by the States as instrumentalities to aid them in the wise and judicious regulation and protection of the local and domestic interests of their citizens. It will never do to say that they may be tampered with, impeded, or arrested in the discharge of their duties, as this bill proposes. It would be fatal to the success and very existence of local self-government. It has many times been solemnly decided by the Supreme Court that these agencies adopted by the States to aid in local administration are above the touch or control of any power, are subject only to the exclusive regulation of the States.

John Farnsworth, member of the Committee on Reconstruction said:

The Supreme Court of the United States has decided repeatedly that the Congress can impose no duty on a State officer. We can impose no duty on a sheriff or any other officer of a county or city. We cannot require the sheriff to read the riot act or call out the posse comitatus (sic) or perform any other act or duty. Nor can Congress confer any power or impose any duty upon the county or city. Can we then impose on a county or other State municipality liability where we cannot require a duty? I think not.

Jefferson wrote from Monticello on June 12, 1823, “Can it be believed that under the jealousies prevailing against the General Government at the adoption of the Constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties, and restraining vice, within their own territory?”

All the above simply demonstrates that there was never any recognized authority before or after the adoption of the 14th amendment for the Federal Government to oust local municipal authorities in administering laws for the security, welfare and social order under their respective jurisdictions.

If a local municipal is exceeding its police powers, then the only known authority to interfere is the State judiciary under State laws.

Conclusion

What these charges against the City of Hazleton boils down to is this: Plaintiffs sought relief from the consequences of a lawfully enacted regulation, not any deprivation of due process contrary to any existing general law of the State.

Judge Munley’s ruling, aided by past divisive, unsanctioned precedent, exceeded federal jurisdiction into the affairs of the people in exercising their solemn right to self-government under the United States Constitution. The ruling is simply, repugnant to our form of constitutional government and finds no support in either the spirit or letter of the great compact that forms our Union of States.