Friday, March 10, 2017

Hugh Hewitt making sense?

I read something in the Washington Post today by Hugh Hewitt, the blowhard "conservative" talk radio host. Surprisingly, I actually agreed with some of what he said:
You can’t call yourself a conservative if you don’t stand with the Constitution over your personal preferences. 
This is an important point that I would make to many of my conservative friends. If you cloak yourself in the constitution, you have to accept both the parts you like (2nd Amendment) and those you probably don't like (1st, 4th, 5th, 14th, 16th. 24th Amendments; Supremacy Clause; Establishment Clause).

I have studied the Constitution, and I generally do not revere it like some who "don't need to read it to know what it says." I perceive our constitution to be a grand but flawed system, but I digress.

Mr. Hewitt, in his normal blowhardism, of course takes it too far.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law.  
No. They're not. They're simply examples of local and state governments refusing to allow their resources to be commandeered by the federal government to enforce policies with which they disagree. There's a difference.

Perhaps Mr. Hewitt is unfamiliar with the details of this (because who cares about details when you have a radio show, amirite?), but there is a longstanding principle known as the "anti-commandeering" principle. Without getting too far in the weeds, here is a quote from the Supreme Court authored by Justice O'Connor from the early 1990s. This case deals with toxic waste dumps and is by no means the only case on this issue, but it illustrates the point:
The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce.
This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.
New York v. United States, 505 U.S. 144 (1992)

The case goes on to note the two methods at issue: attaching strings to federal spending, and offer states the choice of regulating something themselves or having the federal government do so.

The point of all of this is twofold:
1. You really should not piously claim allegiance to the constitution unless you're willing to claim allegiance to the entire thing, even the parts you dislike.

2. The federal government has a limited  ability to force states to adopt policies. For Mr. Hewitt's purposes, if the federal government wants to enforce immigration laws in San Francisco or Chicago, it has the power to do so. It can't force those cities to do it for them. Likewise with marijuana. If the Trump administration wants to crack down on marijuana in Colorado or California, it has the power to do so. It does not have the power to force the state of Colorado or California to do it for them.

A small piece of constitutional law, for those having a difficult time taking their mid-morning nap.

No comments:

Post a Comment