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Harold Pease, Ph. D

American cities are in rebellion. Since the election of Donald Trump, mayors have lined up by the dozens and announced that they will not assist the federal government in the deportation of illegals. Universities followed, declaring themselves off-limits to federal law. None of this is protected by the Constitution. But now California is using the Tenth Amendment, the nullification doctrine, to become a sanctuary state and defy federal law as well. Is it constitutional?

Sanctuary cities defying federal law are nothing new. They did it under President Barack Obama with his encouragement. Estimates of illegals with criminal convictions released to the streets during the Obama tenure range as high as 68,000. Probably most hang out in sanctuary cities that seemingly plan on preventing their deportation. More than 600 of these were released back into the public more than twice. On August 19, 2015, 193 with homicide convictions and 426 with sexual assault convictions were released by the Obama Administration. One, 45-year-old Juan Francisco Lopez Sanchez, with seven felonies and having been deported five times, murdered Kate Steinle, July 5, 2015. More than 340 cities have laws shielding illegal aliens from federal law.

Two constitutional problems exist: as mentioned, the Constitution does not give cities any right to defy the laws of the land emanating from Congress (the only law making part of the federal government), nor should cities or states follow law made solely by the president, as for example executive amnesty. Every mayor has taken a solemn oath “to preserve, protect and defend the Constitution of the United States.” The existence of sanctuary cities is as clear a constitutional violation as exists.

But a state is exempted from federal law that is not constitutionally based by two parts of the Constitution: Article I, Section 8 and Amendment 10. The first, known as the enumeration clause, lists the areas where Congress can make law. Any extension of this list requires an Amendment to the Constitution as all other power remains with the states. Amendment 10 clarifies this relationship more firmly. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So states can refuse to obey federal law and should do so to keep the federal government from absorbing the jurisdiction left to them, “powers not delegated” to the federal government. Remember our Founders created a system of dual governance between the states and the federal government with neither being master or slave.

Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were each especially vocal with respect to states having the authority to “Just Say No!” to federal law not enumerated. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.

More recently the 10th Amendment, and resulting Doctrine of Nullification, first strongly implied in the Constitution and then more firmly stated in the 10th Amendment, is being used by states to prevent the federal government’s overreach of enumerated powers. Thirty states and the District of Columbia currently have laws legalizing marijuana in some form, usually medical, openly defying federal law and on November 8, California, Massachusetts, and Nevada joined Alaska, Oregon, Washington and Colorado completely legalizing marijuana for recreational use as well. Whether my reader views this as good or bad, the fact still remains that without a new amendment to the Constitution this issue remains a state issue. States’ refusal to implement the Real ID Act, passed in 2005, which established new federal standards for state-issued drivers licenses, is a form of nullification as well.

When enough states say no, the feds back away. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.

The use of marijuana, and the ID Act are not within the scope of enumerated powers and thus belong to the states. President Obama’s reinterpretation of the 2nd Amendment rightfully was ignored by the states. Health, education, and marriage, or anything remotely like unto them, can not be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only—regardless of what five rogue justices on the Supreme Court may rule. Any other interpretation would lead the federal government to legislate any thing it wished, end federalism (dual government), and in time destroy all the other checks and balances in the Constitution.

Now California is using the doctrine of nullification to defy federal law on immigration, as it rules itself a sanctuary state. The problem is immigration is clearly constitutionally left to the federal government alone. Article I, Section 8, Clause 4 gives the federal government the right, To establish an uniform Rule of Naturalization.” It has and thus states cannot defy it. Moreover, eight of the 18 clauses listed as the powers of Congress deal with national security and border security defines even the existence of a nation. The Constitution puts an end to the issue in Article 6: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … 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.”

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.