Phil Scott, the Tenth Ammendment and his Republican Base

Robert Maynard

A recent article by Vermont Digger misses the point by focusing on what crimes fro which Governor Phil Scott is willing to deport immigrants who are here illegally.  The real issues here are the rule of law and state sovereignty.  As pointed out in this Cato Institute article, the whole Sanctuary movement has a perception problem of caring more about political correctness than the rule of law:

Although some might like to portray sanctuary cities as lawless holdouts run by politicians who consider political correctness their North Star, the fact is sanctuary policies can help improve police-community relationships.

Shortly after the November presidential election, Los Angeles Police Chief Charlie Beck said the LAPD would continue its policy of not stopping people to confirm immigration status. San Francisco City Attorney Dennis Herrera, who is leading that city’s lawsuit against Trump’s executive order, wrote, “Using city and county resources for federal immigration enforcement breeds distrust of local government and officials.”

The Burlington Police Chief cited similar concerns when he supported our queen city’s decision to become a sanctuary city:

“We want to continue the relationship of trust we’ve built with the people who need our protection by locally emphasizing crime fighting over immigration issues,” del Pozo wrote. “This longstanding practice has enhanced Burlington’s public safety and the mayor has voiced support for continuing it.” 

Numerous local law enforcement officials from around the nation see the imposition on the part of the feds to enforce federal statues as getting in the way of their duties to keep the peace:

University of San Francisco law Professor Bill Hing identified sanctuary policies across the country. According to Hing, sanctuary policies “are adopted as measures of good policing.” Police departments have found that sanctuary policies can improve trust in police.

Such trust is crucial to policing. A 2013 PolicyLink survey found that 44 percent of Latinos were less likely to contact police if they’d been the victim of a crime because they fear police inquiring after their immigration status or the status of people they know. This attitude also affects Latino Americans, with 28 percent of U.S.-born Latinos expressing the same sentiment. It’s not hard to see why officers in some communities prefer sanctuary policies to being perceived as deputized federal agents.

The question is not a matter of respect for te rule of law, as most of these local communities agree with the notion of turning over criminals caught to federal authorities if those criminals happen to be in the country illegally.  What is at issue here is whether local law enforcement officials should be expected to act as an arm of federal law enforcement, even if doing so gets in the way or keeping the peace locally.  Crime rate statistics support this concern:

INCARCERATIONS There were an estimated 2,007,502 natives, 122,939 illegal immigrants, and 63,994 legal immigrants incarcerated in 2014. The incarceration rate was 1.53 percent for natives, 0.85 percent for illegal immigrants, and 0.47 percent for legal immigrants (see Figure 1). Illegal immigrants are 44 percent less likely to be incarcerated than natives. Legal immigrants are 69 percent less likely to be incarcerated than natives. Legal and illegal immigrants are underrepresented in the incarcerated population while natives are overrepresented (see Figure 2). If native-born Americans were incarcerated at the same rate as illegal immigrants, about 893,000 fewer natives would be incarcerated. If natives were incarcerated at the same rate as legal immigrants, about 1.4 million fewer natives would be incarcerated.

 In fact, if you focus on non-immigration related crimes, the incarceration rate of immigrants here illegally drops to  0.50%  This makes the difference in incarceration rates between immigrants, when compared by legal status of their being in the country, statistically insignificant.  Given this reality, it should come as no surprise that some local communities prefer not to get saddled by the feds with the burden of immigration enforce enforcement.  They see this as a case of overreach on the part of the feds and a clear Tenth Amendment issue.

This brings us to Vermont’s Governor Phil Scott, whose decision to stand up to the feds on this issue has caused him grief with his Republic base.  That grief may be because the see this as a rule of law issue, rather than a states’ sovereignty issue.  Or it could be that he is standing up to a Republican President instead of a Democratic one.  Obama’s federal over reach prompted a Tenth Amendment movement among conservatives and Republicans from all across the country and caused the National GOP Platform Committee to put a Tenth Amendment plank in the party’s platform.  Here is an article that points out five was in which President Trump’s policies in regards to sanctuary cities violates the constitutional  principle of federalism and the separation of powers:

1. States can’t be forced to help enforce federal law. In 1996, Congress enacted 8 U.S.C. § 1373, which attempts to stop states and cities from enacting policies that would block state employees from helping the federal government enforce its immigration laws. Yet the next year, the Supreme Court ruled that the federal government cannot force states and cities to help enforce any federal law. As the late Justice Antonin Scalia wrote in the court’s opinion for Printz v. United States, states can be enticed to do so willingly, but they can’t be “commandeered.” States and cities do not have to obey — which directly contradicts Sessions’ requirement.

2. The White House can’t make new requirements. The executive order purports to create new conditions on federal grants to state governments. But the Administration has no authority to do so. The Supreme Court, in Pennhurst State School and Hospital v. Halderman(1981), held that only Congress could impose conditions on federal grants to states — not a President.

3. Even if Congress added the requirements, these are unclear. Even where Congress imposes conditions on spending, it must “speak with a clear voice” and make the condition “unambiguous” so that states know what they are agreeing to by taking the money. Sessions’ “claw-back” threat spotlights how unclear the immigration-enforcement requirements — if they exist at all — are for the thousands of federal programs and grants potentially affected. Didn’t the states and cities have to qualify to get the money in the first place?

4. It’s too late to add new requirements. After a new large spending program is created, even Congress can’t later add new major conditions. The Supreme Court considered this problem with Obamacare’s Medicaid requirement that either a state expand Medicaid or lose even its preexisting Medicaid funds in 2012’s NFIB v. Sebelius. Seven justices found this unconstitutional. So even if Congress wanted to impose these conditions on current substantial funding, it couldn’t. It could only impose them on new funding.

5. The requirements have nothing to do with many of the threatened programs. Any condition attached to spending must be germane to the purpose of that spending. In South Dakota v. Dole (1987), the Supreme Court allowed Congress to condition a small portion of the federal highway funds on the requirement that the state enact a minimum drinking age of 21. The Court found this constitutional because this was related to the purpose of the funds. Even Congress cannot use highway funds to force states to change education policy. If the Administration limits the order to the Department of Justice programs that Sessions talked about, they might be considered germane. But Trump’s executive order adds conditions to all federal grants, and the vast majority of them have purposes — like education or environmental protection — entirely unrelated to immigration. We will see how far the executive order reaches.

There are reasons why limited government conservatives might oppose Phil Scott on some issues, but standing up for Vermont’s sovereignty in the face of federal over reach is not one of them.

4 thoughts on “Phil Scott, the Tenth Ammendment and his Republican Base

  1. Well said Robert. It should come as no surprise that the late Justice Scalia articulated this discussion so well. Our challenge now is to convince a passionate (and understandably frustrated) segment of fellow Republicans to let go of the nationalistic campaign rhetoric long enough to recognize there might be something worth considering about the issue of state’s rights. This isn’t about Vermont interfering with the federal government’s ability to enforce immigration law; it’s about the feds expecting us to do their job, which interferes with our own ability to do ours. Labeling Phil Scott a “RINO” over this issue is absurd and does nothing to strengthen our party. Thanks for writing this.

    • My pleasure Joe. Conservative Republicans need to be more consistant in our support for federalism and not only oppose federal over reach when it comes at the hands of a Democratic President. I am really bugged by the inconistancy.

    • Joe,

      It seems to me, federal and state law enforcement should work together to root out crime and criminals, if they have violated federal laws.

      Did law enforcement not take an oath to uphold ALL laws, i.e., no picking and choosing and excuses?

      It is a slippery slope to condone illegally. Where does that stop?

      How can we face the world and say we are a nation of laws? Folks will think, they are hypocrites.

      • “Did law enforcement not take an oath to uphold ALL laws, i.e., no picking and choosing and excuses?”

        Actually, there is a heirarcy of law in our undertsaning of law enforcement. We brought this up at the Nuremburg trials when the Nazi war criminlas argued that they were not guilty because they were simply following the law. We suggested that there is a higher law that positivee law must confirm to and when the two come n conflict, the higher law must be obeyed. The purpose of enfocing the law is to keep the peace, and if local law enforcement authorities believe the enforcing the federal immigrration law is getting in the way of their primary duties of keeping the peace, they not only have the right, but also the duty to ignore those laws.

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