Vail Daily column: The Supremacy Clause and Syrian refugees
The Syrian refugee crisis has exacted an enormous toll of human suffering. A diaspora of proportions unknown since the Second World War, the flood of dispossessed has strained both the resources and hospitality of the nations into which the tide of asylum-seekers has suddenly stormed. Before the Paris terrorist attack, both out of humanitarian instinct and self-interest, Germany and other nations had flung open wide their doors. The bloodshed in Paris, however, has however cast a somber pall. What if, nations have reasoned, among the immigrants, are those who mean us harm? A fair question, most would agree, following the Paris bloodshed.
Although the U.S. proposes to accept relatively few refugees, a debate has stirred within our borders whether we should accept any refugees at all. After 9/11 and now Paris, isn’t it fair and eminently reasonable to do everything we can to protect our shores?
Notwithstanding the torch of freedom held aloft by Lady Liberty in New York harbor and her welcome which stirs imagination, should we has a nation simply lock the door?
Recently, 18 governors — our Governor Hick not among them — have said yes.
Inscribed beside the Statue of Liberty, her welcome reads, “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
This is what America — a nation of refugees — has stood for from the beginning.
And yet …
Eighteen governors have said, “Not here. Not in my state. The people of the great state of (fill in the blank) will not take them.”
One can understand the reticence. And perhaps a bit of grand-standing to the electorate. But what the good governors of these 18 states have neglected is … um … they simply can’t. It isn’t up to them whether or not the Syrian refugees or any other peoples may gain entry.
All of this goes back to the founding of our nation. If not exactly, saying everything, our name alone says much; we are the United States of America. What began as wholly independent colonies in time became a loose confederation of states and ultimately a nation. While the states retained certain rights and autonomy in some matters, we were bound together under a single cohering Constitution and a way of governance that was ratified by acclamation of the states themselves.
Simply, each state is bound to one another and the nation by a contract of mutual support, cooperation and immutable unity. And by so being, we have become the greatest and most powerful nation the world has ever seen.
The fundament of what it is that makes us US, is the rule of law that is the Constitution. And Article VI of the Constitution makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have, propose, or advance.
Article VI provides, in relevant part 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.”
Immigration is regulated at the federal level, chiefly under the rules established in 1952 with the passage of the Immigration and Nationality Act. The U.S. Congress has control over all immigration-related regulations, while the White House is in charge of enforcing immigration laws. That the federal government has jurisdiction over immigration law has consistently been upheld by the U.S. Supreme Court, which has overruled attempts by state legislatures to single out immigrants.
In the important 1958 case of Cooper v. Aaron, in which the Court considered the efforts of state authorities to block integration of Little Rock’s Central High School, the Court unanimously declared, “No state legislator or executive or judicial official can war against the Constitution without violating his undertaking to support it. … If the legislatures of the several states may at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a mockery.”
Federal law, not state law, is “the supreme law of the land.” Despite the efforts of some states, even today, to “nullify” federal laws they disapprove of, few things in constitutional law are any clearer than the fact that any such efforts are grossly unconstitutional.
The preemption doctrine derives from the Supremacy Clause. This means, of course, that any federal law — even a regulation of a federal agency — trumps any conflicting state law.
Preemption can be either express or implied. When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt. Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law. The Court then looks beyond the express language of federal statutes to determine whether Congress has “occupied the field” in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes.
Federal “occupation of the field” occurs, according to the Court in Pennsylvania v Nelson (1956), when there is “no room” left for state regulation. Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand.
In the matter of the Syrian refugees and whether to accept them, federal law reigns supreme.
As M.C. Hammer might well advise the breakaway governors, “U can’t touch this.” Simple as that.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.