Monday, August 11, 2014

TFP Column: Contradictory Laws Equal Confused Country

(Contrary to all logic and reason, I have decided to put new material up on this blog, but only in the form of the columns that I have done for the Toledo Free Press.  This is done for the benefit of those with time to waste, who likewise do not spend their time reading the website of this award winning weekly newspaper, and I will go back and add efforts that were published earlier this year.)

This particular effort was published today on 08/11/2014.

Many will tell you that the United States is the greatest country in the world. They believe so in large part because this nation, (at least in theory) under the framework of the Constitution, lives under the “Rule of Law.”

Now for those unfamiliar with this principle, this means this nation is governed under the pre-eminence of its laws, and not under the primacy of any individual or group of individuals. Laws however, have an internal supremacy of their own.

Municipalities like Toledo, for example, have city councils with the ability to write and pass laws, which go into effect if the mayor signs and doesn’t veto them. Those rights are guaranteed under the principle of “Home Rule,” granted under Article XVIII of the Ohio Constitution. Article XVIII however, states: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws,” — which is written vaguely enough to make it a constant subject of judicial, if not political, interpretation. Translated from “lawyer-speak,” it means that a city can write laws for itself only as long as the state and nation agree that such laws don’t conflict with state or federal law.

Confused yet? Then let’s talk about the state level, where legislators play much the same game. Like their municipal counterparts, laws can be whatever is passed by the state legislature and signed by the governor. Once completed, however, state law has the potential to make local laws obsolete or superfluous, under the conflict portion of Article XVIII. But that’s not the end.

The efforts of the states in turn are themselves subject to the same fate under the supremacy of federal laws under Article VI of the Constitution. Known in fact as the “Supremacy Clause” it states: “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.” (I know, blah, blah, blah …) Remove the legal gibberish however, and it makes clear that when under judicial review, federal law shall deemed the Supreme “Law of the Land.”

This is where it gets even more confusing. Not only does the president, like the governor at the state level, have the ability to sign or veto legislation submitted to him by the legislature, but lately he seems to feel he has the power to change or delay implementation of certain politically inconvenient provisions in spite of “shall vs. may” language within it (something we’ll have to go into in another effort). More importantly, it’s the executive branch and the president’s attorney general at the Department of Justice (DOJ) that’s ultimately responsible for enforcing federal law.

During the current administration there’s been some confusion, contradiction and what might even be seen as arbitrary behavior where such enforcement is concerned. The current DOJ sees no voting rights violation when a couple of Black Panthers with clubs stand outside a polling place in Pennsylvania, but does see it in a Wisconsin requirement for photo ID and in Ohio where providing absentee ballots and 28 days of early voting is apparently insufficient protection.

The DOJ challenged Arizona (and won) for passing a state law to allow its local and state constabulary to enforce existing federal immigration law when the federal government seemed unable or unwilling to do so. (Texas’s governor just recently deployed the Texas National Guard to assist border enforcement in his state and we have yet to see if this too will be challenged.)
And then there’s pot …

The DOJ insisted on the supremacy of federal drug laws early on when challenging “medical” marijuana use in California, but has recently seemed rather timid regarding recent state laws for recreational use in Colorado and Washington.

Inconsistent and contradictory federal enforcement of the Supremacy Clause seems the most generous way of describing the current situation. Does this erratic and unpredictable legal philosophy leave us confused as a nation, one ripe for both abuse and for legal challenge? Yes. Worse yet, it also makes it more likely that regardless of what you do (even if that’s nothing at all), you could well be guilty of something.

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