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OPINION

New Black Panthers, You're Free to Go -- Not So Fast, Arizona

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

So I guess all that hysteria about the Arizona immigration law was much ado about nothing. After months of telling us that the Nazis had seized Arizona, when the Obama administration finally got around to suing, its only objection was that the law was "pre-empted" by federal immigration law.

With the vast majority of Americans supporting Arizona's inoffensive little law, the fact that Obama is suing at all suggests that he consulted exclusively with the craziest people in America before filing this complaint. (Which is to say, Eric Holder's Justice Department.)

But apparently even they could find nothing discriminatory about Arizona's law. It's reassuring to know that, contrary to earlier indications, government lawyers can at least read English.

Instead, the administration argues, federal laws on immigration pre-empt Arizona's law under the Supremacy Clause of the Constitution.

State laws are pre-empted by federal law in two circumstances: When there is a conflict -- such as "sanctuary cities" for illegals or California's medical marijuana law -- or when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.

If Obama thinks there's a conflict, I believe he's made a damning admission. There's a conflict only if the official policy of the federal government is to ignore its own immigration laws.

Only slightly less preposterous is the argument that although Arizona's law agrees with federal law, Congress has engaged in "field pre-emption" by occupying the entire field of immigration, thus prohibiting even harmonious state laws.

Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices and drugs aren't forced to comply with the laws of 50 different states to sell their products nationally.

And yet, just over a year ago, the Supreme Court held that there was no "field pre-emption" even in the case of an FDA-approved anti-nausea drug because Congress had not explicitly stated that state regulation was pre-empted.

The drug, Phenergan, came with the warning that, if administered improperly (so that it enters an artery), catastrophe could ensue.

In April 2000, Phenergan was administered improperly to Diana Levine -- by a clinician ignoring six separate warnings on Phenergan's label. Catastrophe ensued; Levine developed gangrene and had to have her lower arm amputated.

Levine sued the health center and clinician for malpractice, and won.

But then she also sued the drug manufacturer, Wyeth Laboratories, on the grounds that it should have included more glaring warnings about proper administration of the drug -- like, I don't know, maybe a flashing neon sign on each vial.

Wyeth argued that since the Food and Drug Administration (after 54 years of study) had expressly approved the warnings as provided, state tort law was pre-empted by the federal drug regime.

But the Supreme Court held that Congress had to make pre-emption explicit, which it had not, so Levine was awarded $6.7 million from Wyeth.

If ever there were a case for "implicit pre-emption," this was it. Without federal supremacy for the FDA's comprehensive regulation of drugs, pharmaceutical companies are forever at the mercy of state and local laws -- and trial lawyers -- in all 50 states.

As much as I would like pharmaceutical companies to rot in hell for their support of ObamaCare, I might need their drugs someday. Now, drug prices will not only have to incorporate R&D costs, but also the cost of paying for trial lawyers' Ferraris. (Perhaps that should be listed as a side effect: "Caution! Improper use may cause nausea, dizziness, shortness of breath, and six new houses for John Edwards.")

But the point is: According to the Supreme Court's most recent pre-emption ruling, Arizona's law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.

In fact, the Supreme Court has repeatedly rejected the pre-emption argument against state laws on immigrants -- including laws somewhat at odds with federal law, which the Arizona law is not.

In the seminal case, De Canas v. Bica (1976), the court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law.

The court -– per Justice William Brennan -- said that the federal government's supremacy over immigration is strictly limited to: (1) a "determination of who should or should not be admitted into the country," and (2) "the conditions under which a legal entrant may remain."

So a state can't start issuing or revoking visas, but that's about all it can't do.

Manifestly, a state law about illegal immigrants has nothing to do with immigrants who enter legally or the condition of their staying here. Illegal aliens have neither been "admitted into the country" nor are they "legal entrants."

Indeed, as Brennan noted in the De Canas case, there's even "a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States." (You might want to jot some of this down, Mr. Holder.)

So there's no "field pre-emption" of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.

On top of that, the Supreme Court has repeatedly upheld state laws on immigrants in the face of pre-emption challenges. Arizona's law is no more pre-empted than the rest of them.

Unless, of course, Obama is right and it's a violation of federal law to enforce federal immigration laws, which is the essence of the Department of Justice's lawsuit.

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