"In American political discourse, states' rights refers to political powers reserved for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the Tenth Amendment. The enumerated powers that are listed in the Constitution include exclusive federal powers, as well as concurrent powers that are shared with the states, and all of those powers are contrasted with the reserved powers—also called states' rights—that only the states possess" wiki on states' rights
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"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. " 10th Amendment to the US Constitution
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The states of the South have always been devoted to the notion of federalism and the rights of the states. The rest of the country? not so much … IMO the South has favored federalism because it has always been weaker party in a division of the country into cultural zones,
Now we have an emerging situation in which anti-Trump and liberal states in the Deep North and West are using the mantle of states rights to oppose the power of the federal government.
The governor of Washington looked mighty funny gloating on TV over Washington State's victory over the federal government, mighty funny. pl
I don’t understand this perspective or what facts it is anchored to. There were no state’s rights arguments in the complaint.
This is clear from the headers:
Defendants’ Appeal is Procedurally Improper
If the Court Considers the Appeal, Defendants’ Burden is High
and the Standard of Review Deferential
Defendants Cannot Show Irreparable Harm from the TRO When
it Simply Reinstates the Status Quo
Defendants Are Unlikely to Succeed on Appeal Because the
District Court Acted Within its Discretion
Courts can review the legality of executive action and the
executive’s true motives
The States have standing
Proprietary standing
Parens Patriae standing
The States’ claims have merit
Defendants are unlikely to prevail against the States’
Due Process claim
Defendants are unlikely to prevail against the States’
Establishment Clause claim
Defendants are unlikely to prevail against the States’
Equal Protection claim
http://cdn.ca9.uscourts.gov/datastore/general/2017/02/06/17-35105%20Washington%20Opposition.pdf
Defendants are unlikely to prevail against the States’
INA claim
A nationwide TRO was appropriate
A Stay Would Harm the States and the Public Interest
From my perspective this has always been pretty fluid. Conservatives want to sell insurance across state lines, eliminating the rights of states to regulate their own insurance (only way it would work). In general, I think the right has a tiny bit more of a commitment to federalism, but will drop that commitment in a heartbeat to advance a pet cause.
Steve
Dr. Puck
Ah, lawyer speak. The governor of Washington was explicit in saying yesterday that he views this outcome at the 9th Circuit as a victory for Washington STATE. you need to get out of the law library and read some history. pl
Liberals will have to come up with something else to call it besides “state’s rights” given their long hostility with that term.
I do admit to a bit of schadenfreude. The progressive branch of liberalism has long sought to increase the power and authority of the federal government, has actively promoted technocracy, and now finds out what can happen when all that executive and regulatory authority they’ve built is suddenly in the hands of someone they hate.
The TRO was issued nationwide. The State of Washington was first to the courthouse. There are other states piling on. Washington sued because it found its residents and businesses being negatively impacted by the ban.
To read anything more into this is a stretch at this point.
lars
I know it hurts all these Yankees and pseudo Yankees like you to embrace state’s rights as a method of defending your selves. Be brave! pl
Col. Lang,
Yes, it is highly amusing. It seems that people will often abandon principle when sufficient desire to achieve an outcome in conflict with said principle exists. Gore v. Bush is a classic with the entire conservative side of SCOTUS siding with Federal intervention and the Liberal side agreeing with the state of Florida.
Col.,
Wouldn’t the actual position of the State of Washington in this case be more accurately described as stating that the interests of foreign nationals are superior to those of US citizens?
Colonel,
I believe that what Dr. Puck was getting at was that the TRO was not based on a States’ Rights issue. The State of Washington was exercising the same right that any public or private entity has to sue the US government. The TRO constrains action at the federal level, but does not to devolve the federal government’s authority on international travel to the state level.
The states do not have standing. There is no legal argument that justifies or rationalizes the actions of the clown judge and the 9th circus court. It is a breathing taking power grab by the Judiciary branch. They seem determined to become our House of Lords.
Steve,
I have noticed this too over the years. But it comes from a combination of Movement Conservatives and UpperClass Warriors and OverClass Warriors all over the country rather than from any particular region. Conservatism and The South may overlap, but not completely . . . as they are two different things.
An example of Movement Conservatives and OverClass Warriors asserting Federal Nationalist Supremacy can be seen in the Congress passing and Obama signing the recent law on labeling of GMOs in foods. It is complicated and multi-part and designed to “pre-empt” ( prevent) states from passing genuine sincere GMO labeling laws within the borders of the states which pass those laws. It was passed to suppress Vermont’s genuine actual GMO labeling law. Supporters of GMO labeling laws call it the Federal DARK (Deny American’s Right to Know) Act. Another example is President Trump saying he will seek the forcible abolition of California’s own Auto Emissions Regulation Laws.
This suppression of attempts by particular stateloads of people to protect themselves from one or another sort of National and International Corporate or Other Bussiness Aggression is strictly driven by upper class favoritism and is “dignified” with the “name” of “Federal pre-emption”. It does not strictly break down along South/ non-South lines. I haven’t studied it enough to see if “Federal Pre-emptionism” matches or overlaps South-nonSouth lines some, a lot, or not at all.
At some point Trump has to break the court’s penchant for judicial activism. Winning rulings, even at the Supreme Court level, isn’t enough. His political enemies will simply shift the goal posts and mire him in a legal swamp. He has to get congress behind him and start putting the fear of impeachment and legislative over-rule into these legal beagles.
Who knew The Constitution contains the right for gays to get married, or to have an abortion, but not to control who comes into the country?
I think that was litigated a long time ago and some states’ rights to support slavery was ended. It now appears that some other states are being successful in defending all kinds of rights without any special considerations.
The District Court and 9th Circuit relied on U.S. v. Texas brought by one of the most 10th amendment oriented state in the country for the sub-silentio holding that States have standing to challenge the Federal Government on immigration matters, a field that once was thought to be within the exclusive province of the U.S. Government
.
Strom Thurmond is chuckling in his grave…
Yes they’re craven politicos. I’m sure we’ll see so called conservatives be fine with massive deficit spending shortly and whining about the obstruction in Congress from the left. People and politics are funny.
Lars
“that was litigated a long time” It was not litigated at all. The issue was resolved by force majeur and no one was ever tried for the “rebellion.” You need to learn some American history. pl
“In deciding the merits of the bond issue, the court further held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”.’
https://en.wikipedia.org/wiki/Texas_v._White
As a practical matter, this theory as alluded to by the Colonel below, is operative as well:
“Other scholars, while not necessarily disagreeing that the secession was illegal, point out that sovereignty is often de facto an “extralegal” question. Had the Confederacy won, any illegality of its actions under U.S. law would have been rendered irrelevant, just as the undisputed illegality of American rebellion under the British law of 1775 was rendered irrelevant. Thus, these scholars argue, the illegality of unilateral secession was not firmly de facto established until the Union won the Civil War; in this view, the legal question was resolved at Appomattox.”
https://en.wikipedia.org/wiki/Secession_in_the_United_States
Andy,
There ought to be a balance . . . or perhaps an appropriately stacked layering of who has which powers over what.
Schadenfreude may be delicious for a while, but only for a while. If one lives in a state down wind from another state which has suddenly asserted its right to de-regulate emissions from coal plants and the fresh clouds of coal-smoke mercury from the upwind state fall out in your state’s great-lake water and build up in your state’s great-lake perch and walleye . . . the taste of the schadenfreude over the upwind state telling the Federal EPA where to go will eventually fail to cover up the taste of the rising mercury load in your downwind state’s fresh-water fish.
…while trying to corner the colored maid…
I know the Southern states lost the war and the Northern states declined to prosecute anyone and thus launched USA 2.0.
Andy,
Yes sir!! I’ve warned my brethren for years about what they support and the impact in other hands. Cluck, cluck and roosting now.
Lars,
I’m glad to hear Trump talking about examining our HB1 and EB visa policies.
This isn’t about isolation , to me. It is about educating US children to complete and paying them well.
I won’t defend the hypocrisy, it’s valid criticism even if it is only some lawyer’s seeking of standing within our convoluted legal system. But I will defend the West.
We are mostly a people who fled the madness of the East who, only after scanning the vastness of the Pacific with our own eyes, sighed “Crap. This will have to do.” We were given “states” by the powers that be. We have no collective memory of colonization by this or that Euro faction and clung to no culture but the culture of the group we found ourselves in.
Ken Kesey’s less popular book “Sometimes A Great Notion” may seem like a tale of one family’s defiance but he was careful to make each member of that extended family as different as can be. We are but the resultant culture of whatever mixed up batch of vagrants that happened accumulate about this or that exploitable resource. You won’t find a statue of any Union or Confederate hero. We are only minimally aware there was a war.
A bone for the Southerners: We honor George Pickett here for keeping the San Juans out of Canada.
https://www.nps.gov/sajh/learn/historyculture/george-edward-pickett.htm
Fred, I wouldn’t put it in those terms; I live in the Puget Sound region of Washington state, and it’s been one hell of a week — all passes E/W across the state were shut down because of snow for several days, and it’s rained cats and dogs in the western part of the state, triggering a few mudslides. (The Dept of Transportation and State Patrol appear to have done yeoman’s work this week.) Plenty of us have spent the week rescheduling travel or other obligations.
I’m several degrees of separation from Judge Robart, but he worked for Lane, Powell, which is not a ‘liberal’ law firm. They do a lot of complex cases.
If you do a search on either Puget Sound Business Journal, or else Seattletimes.com (or seattlepi.com), you will find that much of the impetus to ask the court for clarification came from business interests, in conjunction with the state. Amazon and Expedia coordinated with the Washington state AG in asking the federal courts to make a judgment about whether Trump’s ban was legal under federal law. Other companies have since joined the conversation.
Many companies in this region are in *tough* competition internationally for talent, and pride themselves on making products that are used throughout the world. These companies seek to hire ‘the best and the brightest’, no matter their nation of origin. There are plenty of H1B employees in the area, and that is a whole other post/thread topic. This city is booming at present, and many people are moving here from many places, including overseas.
I happened to talk with several H1B employees earlier in the week; their families are calling in a panic from abroad, and a few are feeling confused and uncomfortable. Also this week, I observed a very smart employer from Vancouver, BC, who had prudently come south to “meet and greet” potential employees — in other words, to poach highly skilled potential employees, who might find Canada a more politically tolerant place than the US.
I’m not sure the impetus for any of the legal activity was ‘state’s rights’ as much as it grew out of concern over the complexity of supply chains, the need to plan out large projects that require highly educated people with a fairly quirky mix of skill sets (and language backgrounds). Given this level of complexity and technical knowledge, having anyone — President, senator, judge, or jury — ‘surprise’ people/businesses with sudden rules changes unfortunately makes the federal government appear erratic, imprudent, unpredictable, and untrustworthy.
Not to put too fine a point on matters, but with billions of dollars tied up in supply chains, employees, contracts, deadlines, etc, etc, etc, to have any entity suddenly announce ‘new rules!’ puts many people’s work and businesses in jeopardy. In this light, I hope that it makes at least some modicum of sense to you that Washington’s governor and AG would have been irresponsible if they had not at least asked the courts, “Does this really make sense to make this kind of change, suddenly, in this way?”
Whether you answer ‘yes’ or ‘no’, I think it is still prudent — in view of very complex business relationships and obligations — to at least pose the question.
I think it is clear from the fact that Trump won that the whole issue of immigration triggers a lot of emotion: it may be emotionally satisfying to announce ‘bans’, but how does that form the basis of trust with the communities and businesses that then have to wonder what shoe is going to drop tomorrow? Or next week?
As for Washington’s governor, Jay Inslee, is the first governor that we’ve had start taking a good, hard look at water allotments in the eastern (arid) part of the state, where farmers are absolutely dependent upon snowpack and river flows to sustain irrigation levels so they can obtain good crop yields. That part of the state is politically conservative (‘capital C’ conservative), yet I think that he feels an obligation to *all* the state’s citizens, and he certainly understands that tech is not the only economic driver. Ag is also a huge economic driver for this state, and in the Eastern (more conservative) part of the state, you tend to find — sloppy generalization on my part! — more Latinos in the farming communities, so they are a ‘different demographic’ than the highly skilled H1B’s that you find on the west.
I take Col Lang’s point about ‘state’s rights’, and it has some validity. Nevertheless, I would express some caution that looking at this through a ‘state’s right’ lens misses a lot of what is actually going on — some of it is political, but a whole lot of it stems from very complex business needs, transportation and employment networks, and contractual obligations.
I think we are seeing another big flip. Democrats favoring state rights and Republicans favoring a strong federal government.
Nancy K
IMO you are correct. pl
Lars
IMO the United States did not prosecute anyone for treason because they knew the Southern leaders would argue in open court for the existence of the right of secession and that was not desired in Washington. what’s next USA 3.0″ pl
ROTL,
Thanks for proving my point that foreign nationals – H1B visa holders – are of more concern to the Attorney General of Washington than US citizens. You simply phrase that as Amazon et.al being in need of a particular skill set and that the H1B via holders – non-citizens – are concerned about their future? Too bad for them. My fortune 10 employer has at least 1,000 H1B visa employees in the building I work in or the surrounding facilities in the corporate office complex. We fired plenty of US citizens and outsourced the jobs to the Czech Republic, Poland or India a decade ago. Those concerned foreigners in Washington State can go back home and use that skill set of theirs to improve their own country. Amazon can start raising wages and start hiring and relocating Americans across the country rather than importing foreigners. That would include recruiting future employees from the 5,000 universities and colleges in the US they are not recruiting at now.
Of those 5,000 colleges and universities in the US the question should be asked just how there is an actual shortage of critical skills amongst graduates after decades of spending at a rate of approximately $165 billion per year (federal) at the university level? I think we need to fire 5,000 university presidents and assorted board of regents members due to their utter and complete failure to provide adequate educational opportunities for students that would actually match the job needs of Amazon, Expedia etc? As to your other concern, “but how does that form the basis of trust with the communities and businesses that then have to wonder what shoe is going to drop tomorrow? Or next week?” Please refer to the issuance of EPA regulations by the Obama related to “climate change” and the impact on electric utilities and coal mining operations.
“Dropping” those regulatory changes in sure did feel good to some voters. You’ll note your region wasn’t impacted since 80% of the region’s electricity comes from the Bonneville Power Administration. The nation’s taxpayers have been subsidizing the Pacific Northwest and its economy for decades. That should get looked at too, we’re $20 Trillion in debt after all and Amazon etc have plenty of cash, so they sure don’t need tax subsidies.
https://www.washingtonpost.com/news/grade-point/wp/2015/07/20/how-many-colleges-and-universities-do-we-really-need/?utm_term=.efdd25f6f30d
Mark,
“We are mostly a people who fled the madness of the East who, only after scanning the vastness of the Pacific with our own eyes, sighed “Crap. This will have to do.”
You really believe that? The colonization of the NW wasn’t done by people who stepped off an airplane or a ship with a quick stop at Starbucks before driving off on a paved multi-lane highway to the new home they found via the internet.
USA 3.0 came with FDR. Now we are looking for USA 4.0. The big question is whether 3.x ends with Trump, or 4.0 starts with him. So far, it appears it is the former.
10th amendment defenders would say that both sides use it when politically expedient. This post might just as well have been called “Conservative Conversion to the Non-Support of States Rights.”
Fred,
I am addressing our Founders there. You probably have the notion that we are all latte-sucking wimps but in fact the Boeing people are anything but, and I would not go there with those guys wearing the red hat and Carhartt aboard a tiller on the black soil of the Palouse, nor would I the apple orchard Deplorables.
The governor will brag about “defeating” Trump because he is aware Trump’s support among those people is very weak. Soft white wheat is the big crop and it dwarfs all others. Only used for making noodles and 90% of it goes to Asia. That guy in the tiller is listening to Aussie weather reports as much as his own. Every year the Great Game for them is to nail the peak price and the Aussies are the competition. They also remember the bad years when Big Government’s set floor for wheat prices has saved their asses. This has happened many times even in the last decade. The apple guys pay close attention to Japan. Most of their crop goes there too. Both are deeply worried about trade wars. Do you suppose they will march in support of Trump now?
Boeing loved Hillary, but ideology had nothing to do with it. They loved her because she was always Johnny-on-the-spot when it came to negotiating plane deals with foreign governments. A word from them and she was on the plane and the phone in no time flat.
Microsoft? Do they view the world as a global market or what??
For our little corner of the nation trade is all but everything and “States” are all but meaningless. This is so different from the condition of the Rust Belt, and the East in general, that it is no surprise to see it is not generally known. It is not widely reported. Nothing that happens out here is, pretty much. The media is NYC based.
Mark,
You’re doing a great deal of projecting. The founders of the State of Washington weren’t Boeing employees. Mega-farmers exporting to Asia, Boeing and Microsoft are hardly a trifecta on which to base a regional economy. Especially since it only took a couple of tweets from Trump for Boeing’s defense contractor competitor to shave millions off the price tag of the F35. Elon Musk’s SpaceX is competition enough with the aerospace arm of Boeing. The company is in for a rough ride. Microsoft? It has less US based employees than Toyota. You need a bit more diversity in that employment sector. Not having the other kind of diversity is a big reason you’ve avoided adversity, but it isn’t PC to point that out.
Colonel,
Respectfully, the mythical right for a state to secede from the Union was decided by force majeur. Which calls into question the intelligence of the decision to shell Ft. Sumter. In doing so the inevitable defeat of the Confederacy was guaranteed. They had definitely awakened a sleeping giant.
That none of the vanquished were ever tried for rebellion speaks more to an attempt to begin to heal the divisions between the North and South. There was simply no compelling reason to make martyrs for the South to revere.
The definitive decision on the right of a state to secede was indeed litigated by the United States Supreme Court in Texas v. White, 74 U.S. 700 (1869).
Writing for the majority Chief Justice Chase wrote:
“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
Richard Armstrong
The only thing that made the right of secession “mythical” was defeat in the attempt. the opinions you cite are all those of loyalists in the Union cause who could write anything they liked in the aftermath of their side’s triumph. “the inevitable defeat of the Confederacy was guaranteed.” Rubbish. Have you ever read anything that was not written from the Union POV? Chase? my God, could anyone be more partisan? the outcome of the war hung on the issue of whether or not the Northern side would persist in invading and conquering the Confederacy in the face of staggering losses. That was a close run thing. There is nothing in the US Constitution then or now that says the Union is indissoluble. To say that admission to the Union rendered the Union indissoluble is mere self service on the part of the Unionists. pl
Thank you for your response.
Fred,
Mega farmers? News to me and I was mostly raised there. What is a mega farmer in the Palouse and associated lands stretching into Idaho, and who exactly are they?
Boeing, Microsoft/tech and agriculture ARE the big three here, and for Boeing here it’s largely commercial aircraft. Space is research and doesn’t employ but a tiny fraction of the whole. Toyota only the region as one if it’s points of entry, its US employment is a different subject
On the chance you were trying to be funny here’s something in return: (Humor alert)
http://www.abc.net.au/news/2017-02-12/huw-parkinson-trumpocalypse-now/8263228
Fred, I think that you make some very valid points that I simply don’t have energy to respond to, and I’m not sure this late comment on a thread really is the place to dig deeper.
I would say that it is important that everyone be clear about what the law is, and how and when it can be changed. I don’t see this change as favoring H1Bs, as the implications for citizens such as myself are also quite disruptive.
The point that I intended to make is that ‘state’s rights’ was not the primary motive from what I saw locally. However, like most people, I see only a thin shard of the world.
I’ll leave it at that for this thread, but I do appreciate your points, and I heartily concur that the whole issue of global taxation needs far more scrutiny and cleanup. Perhaps the Brexit, the upcoming French election, and the Greek/EU crisis will jolt a few minds to paying this far more attention.
Mark,
Yes they are big in Washington state that is hardly the sole reason for national immigration policy.
Agriculture may be a major industry but as far as employment numbers trivial:
http://agr.wa.gov/AgInWA/
http://factoryfarmmap.org/#animal:all;location:WA;year:2012
https://fortress.wa.gov/esd/employmentdata/docs/industry-reports/2015-agriculture-workforce-report.pdf
Nice link to the Australians. Now if a former penal colony won’t take refugees obviously we should, I sure understand the irony in that position.
GMOs are bad.