So Long, State's Rights

Statehood Dies in a Dictatorship

In your state and mine, this Old North State, and all 49 others (not including Canada), state’s rights are about to become a relic of constitutional democracy. This will come to pass if, as some of us expect, the U.S. Supreme Court takes up a question invoking the “Unitary Executive” theory, and rules in support of that proposition, consistent with their previous ruling in Trump v. United States, (2024).

You’ll recall that the referenced Trump case is the one in which the Supreme Court (SCOTUS) decreed that the President of the United States is essentially above the law, as long as whatever he or she is doing can somehow be construed to be part of his/her official duties, “with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate such as the pardon, command of the military, execution of laws, or control of the executive branch.”^[1] The so-called Unitary Executive theory merely extends this notion of immunity to one of supremacy: it situates the President as head of the executive branch to be superior to the other two branches of government – judicial and legislative. In the case that is likely to raise this issue, the current “President” is causing alleged members of a Venezuelan gang to be deported to El Salvador without notice or judicial oversight, and in defiance of a lawful order from a sitting judge.

What is the justification for this? As Joyce Vance neatly explains, “Trump wants a ruling that says he can do . . . deportations regardless of other legal issues, because he is the president, and the president has the power to do whatever he deems necessary under Article II of the Constitution.”^[2] Lawyers for Trump are arguing that this is some kind of national emergency, and that Trump has authority under the Alien Enemies Act of 1798, making immigrants “liable to be apprehended, restrained, secured, and removed” if he deems them to be a national security threat (just as the Japanese and others were detained in WWII, for example). This, his lawyers argue, is an authority he has as Commander-in-Chief of the military.

Note that this Act has never been invoked outside of a time when the U.S. was in a Congressionally declared war – it is a wartime authority. These deportations are a rescue in search of an emergency, predicated on some non-existent invasion. (Even assuming, arguendo, that these men are “invaders”, they are still entitled to whatever protections accrue to prisoners of war.) Faced with a lawful restraining order and instructions from the bench to return these prisoners to the U.S., administration officials basically responded “fuck you” to the court.

Article II spends a lot more words describing how a person becomes President than it does outlining the job – pardons, command of the military and executive branch, appointments with advice and counsel of the Senate – that’s about it. So, if SCOTUS gives him the authority to arrest and deport any person, immigrant/green card holder/citizen? without any sort of oversight, inquiry or due process – deport them, mind you, to prisons outside the jurisdiction of the United States – I’d say he’s well outside constitutional bounds, at that point. By granting Trump the authority to act unilaterally, despite specific instructions to the contrary from the Federal bench, SCOTUS is essentially relinquishing to him their standing as a check on the power of the Executive Branch.

In short, Unitary Executive theory envisions a constitution-free Presidency. Madison would be spinning in his grave.^[3]

“State’s Rights” is a phrase with interesting connotations, as old as the founding of the republic itself. In the long and ongoing struggle to balance the power of the federal government with the interests of the individual states, the seesaw has tipped one way or the other on a variety of concerns. State’s rights disputes have involved slavery (and a host of other discriminatory behaviors), abortion, euthanasia, polygamy, same-sex marriage, immigration, and gun control, to name a few. State legalization of marijuana use, despite its present classification in federal law as a Schedule 1 drug, remains an unresolved issue, as does state enforcement of border control.

Most Leftists are not big fans of “State’s Rights,” because the phrase connotes a desire to be free to mistreat certain subgroups as pleases the voters of that state, without interference from the federal government. It’s the freedom to exploit immigrants, to abuse LGBTQ+ individuals, to criminalize poverty and interfere in the lives of damned near anyone who isn’t white and male. Nevertheless, the Constitution does guarantees to states (and “the people”) rights not delegated to the United States. States have their own legislatures, their own laws – insofar as they do not conflict with federal law – their own citizenship requirements, they collect their own taxes and regulate a variety of activities (police, fire, waste disposal, etc.).

So, what’s the punchline? Who cares?

Well, for one thing, the history of individual liberties in this country is a history of states, collectively, coming together to agree on certain principles, and to amend the Constitution in protection of those principles. Those amendments include lofty goals: the end of slavery and the guarantee of civil rights, defining citizenship, ensuring the right to vote, and even establishing the two-term limit on the Presidency. We’ve already seen attacks on birthright citizenship, as well as the erosion of civil liberties and voting rights (including the proposed SAFE Act, which will knock thousands of women off the voting rolls). Can the end of Presidential term limits be far behind?

At this moment in North Carolina, it probably doesn’t matter much. We are gerrymandered deeply into the would-be dictator’s pocket. We have a weak Governor (the office, not the person) and our power to sustain a veto is razor thin. It’s almost certain that there’s a Democrat or two in the NC State House who is willing to give up their principles for “political purposes” (or cash). More to the point, our voters supported the King-Incumbent in his ascension to the throne, so – for the moment – he’s likely to see our state as friendly to his interests.

But he is doing things, and going to do things, that are against our best interests, and he will have the final say. There will be no recourse to the courts, or the Congress, or the Constitution – the “Unitary Executive” will see to that. The state legislature will be (is?) nothing more than a rubber stamp for the Executive Branch. We are already beginning to suffer, through wounds great and small. The loss of government contracts and support, the literal whitewashing of our history, the diminution of what was once a great post-secondary University system, the re-poisoning of our environment, institutional indifference to poverty and the spread of disease – all that and more.

Just be glad you don’t live in California.

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^[1]https://en.wikipedia.org/wiki/Trump_v._United_States_(2024

^[2]

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^[3] In Federalist No. 51, (Madison) explains how the separation of powers between three branches of the federal government, as well as between state governments and the federal government, establishes a system of checks and balances that ensures that no one institution would become too powerful. See https://en.wikipedia.org/wiki/James_Madison