Federal "Supremacy" or Usurpation? by Mark Andrew Dwyer

by Mark Andrew Dwyer

Federal "Supremacy" or Usurpation?

August 20, 2007 01:19 PM EST

When I learned a year ago the details behind sentencing two Border Patrol agents, Ignacio Ramos and Jose Alonso Compean, to 10+ years in federal prison for doing their job of enforcing the American border, I thought I saw the height of unconstitutional absurdity, paramount to everything I had ever seen in judicial matters (see [1] for a detailed analysis). Not anymore. Last month's injunction by a federal judge James M. Munley (see [2] for full text) against the city of Hazelton's Illegal Immigration Relief Act (see [3]) surpassed my wildest imagination of what could the limit of judicial nonsense be, and made my jaw drop.

Quoting the so-called "supremacy" clause (Article VI [2]) of the U.S. Constitution, and the naturalization clause (Article I Section 8 [4]) with (implicitly) its enforcement provision (Article I Section 8 [18], a.k.a. necessary-and-proper clause), judge Munley arrived at an invalid conclusion that the federal government has the sovereign power to not enforce the immigration laws, or even to obstruct (as, for instance, judge Munley did) any enforcement of these laws, if it chooses so (has an interest not to ¹), and We the People have no business interfering with Feds' divine choice in these matters. As if 10th Amendment (which the Congress lacks authority to infringe upon or change, unless by means of another Constitutional amendment duly ratified by 3/4 of the state legislatures) that amends the Constitution and supersedes the "supremacy" clause did not say:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,

never mind The Declaration of Independence's Consent of the Governed self-evident truth:

whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government

that judge Munley's royal interpretation of the "supremacy" clause renders but a meaningless figure of speech, so that nothing stays in the way of federal progressive usurpation of unconstitutional powers.

Deriving the supreme and pre-emptive power to not enforce, or even to de facto obstruct the enforcement, both at the local (like in the case of city of Hazelton) or federal (as discussed in [1]) level, from the questionable ² federal authority to enforce was an invalid inference that I found particularly absurd in judge Munley's "reasoning", by no means the only or even the most serious flaw. In the chapter THE FLAWS of an extended version of this article (posted under the same title here), I presented a non-exhaustive list of other flaws in his legal argument that testify poorly about his command of Constitutional law and the Supreme Court's relevant rulings³, as well as about his ability to reason logically, and rise serious questions about academic standards that prevail at Temple University School of Law that he graduated from in 1963.

How could a federal judge and, presumably, an experienced lawyer, arrive at conclusions that are so absurdly at odds with the language of the Constitution and its Amendments? Although the 206 pages-long ruling is a convoluted mess that punishes an analytic reader with its inconsistencies and a lack of clarity (see the extended version of this article, item 6 of section Absurd Interpretations chapter THE FLAWS, , for annotated excerpt from judge Munley's ruling), the answer to this question is surprisingly simple: judge Munley piled (often invalid) inferences upon inferences and, by doing so, departed farther and farther from the actual law of the land that he was supposed to uphold.

The Supreme Court of the U.S. has followed the "no inferences upon inferences" legal doctrine for quite some time now (see [4] for a brief overview), particularly in the cases involving 10th and 14th Amendments (see, e.g., [5]), and justly so. Since the laws, their language, and the rules of legal reasoning are not 100% precise (not in a sense that, say, symbolic logic or abstract algebra are), each time an inference is made, a tiny (and, hopefully, negligible) potential error is injected to the legal system. This, in itself, is usually acceptable as a matter of practicality (particularly, when is a part of court's opinion and not the actual verdict), but when inferences are piled upon inferences and upon inferences, the tiny error accumulates little-by-little and, as years and decades go by, becomes larger and larger up to the point when it is no longer negligible or acceptable. And, of course, the departure from the original premise become even more dramatic if any of the individual inferences were, in fact, invalid, as it has been the case of the judge Munley's ruling⁴.

Here is an example. Suppose that each day you take a day job that pays $20 per hour, with the right to continue each following day with hourly rate about the same as the rate the day before. When I say "about" I mean that you are not going to object if your hourly rate decreases one penny (nor would you object if it increased). Your employer pays you at the end of each day of work. The first day he pays you $20 per hour. The next day he pays you $19.99 per hour (just one cent less, you don't care). The third day he pays you $19.98, and so on, each day subtracting just one cent from your previous hourly rate. Any time he does so, his reasoning goes like this: "Look, we have agreed that today your rate is going to be about the same as your yesterday's rate, and you said you wouldn't mind if it's a penny less. So if I pay you one cent per hour less then yesterday, I am in total accordance with our agreement." Well, it seems logical, but after 2,000 days, or in about eight years of employment (assuming you work five days a week 50 weak a year) your hourly rate becomes ... $0 (zero dollars) per hour, definitely not what you could expect from a job that was supposed to pay about $20 per hour. (Another more entertaining example illustrating absurd consequences of a sequence of repetitive little-by-little changes may be found in [6].)

And so goes piling inferences upon inferences. A federal judge F₁ deliberates the law of the land L and infers from it conclusion c₁ that to all practical purposes logically follows from L. Let's denote that fact by L → c₁. Then, another federal judge F₂ deliberates the previously inferred conclusion c₁, and infers from it conclusion c₂ that to all practical purposes logically follows from c₁. Let's denote that fact by c₁ → c₂. Using the transitiveness of logical inference⁵, judge F₂ then concludes that since L → c₁ and c₁ → c₂ then L → c₂, or, in other words, that conclusion c₂, to all practical purposes, follows from the law of the land L. Then, yet another federal judge F₃ deliberates the previously inferred conclusion c₂, and infers from it conclusion c₃ that to all practical purposes logically follows from c₂. Let's denote that fact by c₂ → c₃. Using the transitiveness of logical inference (again), judge F₃ concludes that since L → c₂ and c₂ → c₃ then L → c₃, or, in other words, that conclusion c₃, to all practical purposes, follows from the law of the land L. This process continues, involving more and more federal judges until, eventually, one of them, say, F₅₀₀, infers a desired conclusion M from the previously inferred c₅₀₀, and concludes that since L → c₅₀₀ and c₅₀₀ → M then L → M, or, in other words, that conclusion M, to all practical purposes, follows from the law of the land L. The resulting pile of inferences upon inferences: L → c₁ → c₂ → c₃ ... → c₅₀₀ → M, or, more formally, L → c₁, L → c₂, ..., L → c₅₀₀, L → M , is used as a "justification" for the invalid conclusion M (the number 500 here is for illustration only; it could have been as small as 10 or less and still lead to an invalid conclusion M). As we have seen before, the final conclusion M may depart quite dramatically from the original premise L (particularly so if some of the individual inferences c_n → c_n+1 were invalid, as it is the case of judge Munley's ruling⁴), and this is why the Supreme Court of the U.S. tends to reject M as a result of invalid reasoning ⁶ L → c₁, L → c₂, ..., L → c₅₀₀, L → M, while judge Munley accepts it and, therefore, he accepts M (and all previously inferred conclusions c₁, c₂, ..., c₅₀₀) as logical consequences of the law of the land L. Hence the absurdity of his ruling.

I sincerely hope that one day judge Munley's entire ruling ([2]), full of errors, fallacies, misinterpretations, inferences piled upon inferences, presumptions upon presumptions⁷, and absurd or invented assertions, will be placed in the Federal Museum of Judicial Nonsense as a prime example of damage a Liberal activist judge nominated by a Liberal president can inflict to a constitutional republic.

A thing well worth remembering during the next presidential elections.

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Footnotes. ¹On pages 117-118 of his ruling [2], judge Munley refers to "too stringent of an enforcement" and "excessive enforcement" that, in his opinion, may cause undue burden for employers, prompt removals of citizens and lawful residents, and result in some unspecified negative impact on U.S. foreign policy and international alliances. (He failed to mention federal government interest in non-enforcement of the border and the immigration laws, or the obstruction thereof, as means to provide its corporate lobbyists with "cheap" labor in order to suppress the prevailing wages on the U.S. job market.) Whether one accepts these as valid premises (certainly, no one at his right mind would intend to deport citizens of the U.S. from this country), judge Munley failed to indicate any valid Constitutional basis for such non-enforcement (never mind obstruction of the enforcement), and that is assuming that the federal authority to enforce, however unconstitutional, does de facto exist (for over 100 years, per judge Munley) in these matters. Moreover, even if one were to assume that the federal government has the extra-constitutional authority to not enforcing the immigration regulations that it enacted into the law (which I strongly doubt that it does, except, perhaps, in the cases that it doesn't have any authority to enforce), or to obstruct their enforcement, 10th Amendment makes it clear that both the States and the people, in particular, the city of Hazelton, have the right to exercise their constitutional (see [7] for a brief history) powers in this respect. In particular, neither the Constitution nor its Amendments prohibit them from exercising their powers in these matters just because the federal government chose not to (or, for the reason conjectured above, wants to obstruct any exercise of such powers), and, in fact, the exercising of these powers at State and local levels seems like the most logical consequence of the federal government's refusal or failure to do so.

²See, for instance, [8] (a highly recommended reading) for a thorough analysis of the foundations (or, rather, a lack thereof) of federal authority in the area of immigration.

³For instance, although judge Munley referred to Plyler vs. Doe, 457 U.S. 202, 212 (1982) and DeCanas v. Bica, 424 U.S. 351 (1976) while discussing federal pre-emption in the area of immigration, he dismissed DeCanas as void (in Munley's opinion) by 1986 IRCA, but stuck to Plyler vs. Doe despite the fact that it borrows from DeCanas and was (arguably) superseded by IRCA. In DeCanas, the Supreme Court removed the myth of preemption on the basis of a notion of implied congressional intent, allowing for only objective factors to be applied. In particular, DeCanas decided that "standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration. Even if such local regulation has some purely speculative and indirect impact on immigration [that was exactly what judge Munley postulated in his ruling], it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve", which IRCA did not void, and even if it attempted to, it would have lacked the authority to doing so (except by means of Constitutional amendment) as it pertains to Constitutional matters. Apparently, judge Munley believes that the Congress, by implicitly usurping for itself powers not delegated to it by the Constitution (see [8]) invalidates, by virtue of the "supremacy" clause, the U.S. Supreme Court's rulings (for instance, DeCanas) in the usurped areas.

⁴For instance, the Supreme Court in some of its opinions (e.g., in Plyler v. Doe, 457 U.S. 202, 212, 1982) recycled the extra-constitutional assertion that all persons within a state’s territory automatically fall under that state’s jurisdiction, which doctrine was invented in Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) by arbitrarily injecting the word “territorial” between the words “its” and “jurisdiction” into the language of the equal protection clause of the 14^th Amendment, and erroneously interpreting the phrase “the equal protection [emphasis added] of the laws” as “the protection of equal laws [emphasis added]”, so that the equal protection clause of the 14^th Amendment “nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws" mysteriously becomes an equal rights clause (court’s invention) that reads “nor shall any State [...] deny to any person within its territorial [emphasis added] jurisdiction the protection of equal laws [emphasis added]", without much regard to logic and obviously absurd consequences of such an invention. Needless to say, judge Munley piled his own (mostly invalid) inferences on those made in Yick Wo v. Hopkins and Plyler v. Doe.

⁵Unfortunately for judge Munley who apparently is not aware of this fact, the transitiveness of inference (meaning that if one can infer q from p and r from q then one can also infer r from p) does not hold for approximate (logically or mathematically imprecise, that is) reasoning, as the decreasing hourly wage example clearly shows. What is particularly paradoxical here is that in each particular step a reasonable person would (reluctantly) agree that the approximate inference is transitive (for instance, if you have already agreed that a decrease of your rate from, say, $17.47 per hour to $17.36 per hour over 11 days is within the meaning of phrase about the same as, and, at a different occasion, that a decrease from $17.36 per hour to $17.35 per hour in one day is within the meaning of phrase about the same as, then you would appear unreasonable if you objected a decrease from $17.47 to $17.35 per hour, albeit over a longer, 12 day time span), but the effect of its multiple composition ("piling" according to the Supreme Court language) leads to obviously false conclusion (like that $20 per hour rate is about the same as $0 per hour rate.)

⁶For instance, in U.S. v. Lopez (see [5]), the U.S. Supreme Court put Congress' fallacious practice of piling inference upon inference using another ubiquitous tool of federal usurpation, the notorious "interstate commerce" clause of the Constitution, to rest while declaring the Gun Free School Zones Act of 1990 unconstitutional. The Supreme Court wrote: "To uphold the Government's contentions here, we would have to pile inference upon inference [emphasis added] in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

⁷Presumption upon presumption is a fallacy similar to inference upon inference, although - as opposed to inference upon inference - it usually involves negation in the context of obligation. Both fallacies have long been discredited as means of reasoning by the U.S. Supreme Court, e.g., in U S v. Ross, 92 U.S. 281 (1875).

REFERENCES

[1] The Blessings of Liberty

http://geocities.com/readerswrite/commentaries/Blessings_of_the_Liberty.htm

[2] U. S. District Court
The Middle District of Pennsylvania

Lozano at al. vs. City of Hazleton, No. 3:06cv1586 (2007)

http://www.wbcitizensvoice.com/pdfs/hazletondecision.pdf

[3] Illegal Immigration Relief Act passed

http://www.smalltowndefenders.com/public/node/6

[4] The Return of Dual Federalism:
A Historical and Contemporary Analysis of Supreme Court Jurisprudence
http://gladstone.uoregon.edu/~uofla/Winter00/Tauber.html

[5] U.S. Supreme Court
United States vs. Lopez, No. 93-1260 (1995)

http://www.law.cornell.edu/supct/html/93-1260.ZO.html

[6] The Camel's Nose In The Tent

http://camelphotos.com/tales_nose.html

[7] Supremacy Clause Versus the Tenth Amendment

http://supreme.justia.com/constitution/article-6/06-supremacy-clause-versus-tenth-amendment.html

[8] The US Constitution Only Delegates the Power Over Immigration or Asylum to the States

http://federalistblog.us/2006/07/delegated_powers_immigration.html