Counter Point to Supremacy Clause Argument: Reaction to ‘Response to Navarro’s Outrage’
The following Letter to the Editor is response to a "A Citizen’s Response to Councilmember Navarro’s Outrage," a Letter to the Editor published by Germantown Pulse on Monday, Jan. 30, 2017.
If the letter to the editor regarding Nancy Navarro’s statement that President Trump’s immigration order is outrageous were simply the writer’s exercise of his Constitutional right to free speech, I would not feel the need to reply. However, as his reliance on the Supremacy Clause is legally misguided and his assertions about Trump’s intentions are factually incorrect, I felt the need to respond. Disagreements over the state of our nation are a healthy part of politics and society in general, and the right to do so is a foundation of our country. But when they are based on half-truths and red-herrings, they rise to the level of the famous axiom, “I know just enough to be dangerous.”
To begin with, the writer’s reliance on the Supremacy Clause overlooks several important aspects of both the Constitution and the legal structure of the United States. The Supremacy Clause was meant to ensure that the federal government was not subservient to state constitutions and state laws. Importantly, however, the Supremacy Clause does not prevent states from speaking up or taking the federal government to court when they feel a law is outside the boundaries of the Constitution. (This is bolstered by the 10th Amendment as well, which says that the federal government has only those powers delegated to it in the Constitution; the states are in charge of the rest.)
Ms. Navarro did not say Maryland would not comply with the order, nor did she order customs officials to violate the order. She simply exercised her duty as a democratically elected Maryland official to stand up for constituents whose rights are being violated. If the writer feels that does not represent his views, he is entitled to say that and vote against her. But until she loses an election, she will act in the way the voting public elected her to act – just as the writer supports Trump in doing.
The reliance on the Supremacy Clause begs a counterargument – that the string of executive orders Trump has issued are actually an unlawful attempt to circumvent Article 1, Section 1’s provision that only Congress may enact legislation. Congress has exercised this authority in the realm of immigration law, a fact acknowledged in the executive order. That Trump feels Congress has, “failed to discharge this basic sovereign responsibility” does not negate the fact that Congress is the only branch with the authority to issue laws that amend its previous legislation.
While striking down one of President Truman’s executive orders, the Supreme Court itself concluded in Youngtown Steel & Tube Co. v. Sawyer (343 U.S. 579 (1952)) that: “In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.” The Court has also said "The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." (Myers v. US., 272 U.S. 52 (1926)). Finally, discussing the separation of powers, James Madison himself said in the Federalist Papers, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Further, Trump has since issued even more controversial orders to deny entry to Muslim refugees seeking asylum, while protecting the rights of Christians seeking asylum, and to prevent entry to even those who have legally been granted the right to live in this country (such as visa and green card holders), as well as those who have American spouses or are at risk because they helped our troops overseas. These orders not only circumvent Congress’s sole power to enact laws, but they circumvent fundamental rights guaranteed by the Constitution.
More alarmingly, the writer states, “No one is advocating for the forcible removal of anyone who is a law-abiding resident of the county.” Putting aside that the order itself says nothing about being limited to only those immigrants who have criminal records, Trump’s own words dispute this claim.
In September 2015, Trump told 60 Minutes that he would immediately deport all undocumented immigrants, saying, “We're rounding 'em up in a very humane way, in a very nice way. And they're going to be happy because they want to be legalized. And, by the way, I know it doesn't sound nice. But not everything is nice." In February 2016, he reiterated that at a CNN/Telemundo Republican primary debate, saying “We have at least 11 million people in this country that came in illegally," he continued. "They will go out. They will come back -- some will come back, the best, through a process.”
Other statements demonstrate that, while the writer may not himself be racist, Trump certainly is. He famously stated at the beginning of his campaign that, “When Mexico sends its people, they're not sending their best... They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people." I grew up in Texas near the border, and I can tell you that Mexicans, including those who are undocumented, are hard workers who by and large pay taxes and raise their children to contribute to American society. They’re here for a better life, away from the drug dealers they too despise.
Trump is also Islamophobic, saying of his campaign plan to ban all Muslims from entering the country that many Muslims have hatred for the West and that, “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Anyone who reads fact-based articles – or knows many of our Germantown neighbors – knows that the Muslim community is overwhelmingly peaceful and respectful of other religions. Those fleeing their countries are doing so out of fear of the terrorists. To lump them in with their terrorizers is a gross affront to humanity and to the people who are actually suffering daily at the hands of madmen. (And it ignores the fact that many of the terrorist attacks in the U.S. since 9/11 were committed by American-born citizens.)
I could keep listing examples of the disdain Trump has shown for women, minorities, the disabled, Gold Star families, the LGBT community, and many others who are now his CONSTITUENTS. But I’ll save that for when they, too, become the subject of an executive order.
This country was started by immigrants searching for a new land where they would not be subject to the whims of a sovereign leader and could freely speak, practice any religion, associate with others, have due process in the courts, and protest government wrongdoing. Reasonable people may differ on the correct path for our country, and they should certainly voice their opinions. But there is nothing patriotic about using the Constitution to attack others for expressing different beliefs than you and standing up to a government they feel is not protecting legal rights – the ability for such dissent is, in fact, the true bedrock on which our country was founded.
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