Last Friday, the Competitive Enterprise Institute took a stand for federalism and separation of powers through an amicus brief. These constitutional principles are critical to the constitutionally limited government that ensures our freedom.
Our system of government is designed to accommodate differences of opinion on how it should be run. This was done by allowing each state to decide for itself how it wanted to operate. The federal government was created to handle those things that no state could do on its own. States are free to help the federal government if they choose to do so, but they are not required to.
This principle has important implications for political accountability. If the federal government can force a state to implement federal law and there are problems, the federal government will blame the state with not enforcing it properly. Meanwhile, the state will blame the federal government for forcing it to do these wrongful acts. As Alexander Hamilton noted in Federalist No. 70:
It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.
That is why allowing such a mixture of authority “tends to conceal faults and destroy responsibility.” By keeping the enforcement as distinct choices for both the federal and state governments, the people can know who is at fault.
That delicate balance of power was endangered recently. For years, many states have assisted federal law enforcement in providing access to DMV records. In response to perceived abuses of federal immigration enforcement, New York decided to stop assisting federal immigration enforcement. New York cut off the Department of Homeland Security’s (DHS) access to the New York DMV records unless DHS agreed not to use the records for immigration enforcement.
In response to this, DHS responded by cutting all New Yorkers off from the Trusted Traveler programs. These Trusted Traveler programs, such as Global Entry, allow prescreened individuals to quickly pass through customs and domestic TSA checkpoints.
New York and a class action on behalf of New York residents sued DHS to stop this denial of access to these programs. A person’s ability to challenge such federal actions is based on the Administrative Procedure Act (APA), which generally provides for judicial review of agency actions.
DHS moved for summary judgment against these APA claims. DHS essentially claims the ability to arbitrarily deny people access to these programs for any reason it wishes without any judicial scrutiny due to lack of instruction from Congress.
CEI filed an amicus brief last Friday opposing this motion by DHS. Congress required that DHS set up this program based on “security threat assessments” and citizens have the right to ensure that DHS is doing what Congress instructed rather than retaliation for New York’s refusal to assist federal law enforcement.
The Competitive Enterprise Institute does not take a position on whether New York (or any state), as a matter of policy, should assist the federal government in enforcing federal immigration law. But that choice must be made free of unjustified retaliation and coercion.
This principle was eloquently explained by Supreme Court Justice Antonin Scalia, writing for a majority of the Court in Printz v. United States (1997). In that case, the federal government attempted to force a Montana sheriff to enforce the federal Brady Handgun Violence Prevention Act. As Justice Scalia wrote, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
The prohibition on the federal government forcing a state to enforce a federal law applies to both the handgun control at issue in the Brady law, and to immigration. The federal government is still free to enforce federal immigration law, but it cannot coerce New York into assisting it in doing so by threatening New York citizen’s access to these programs.
UPDATE: Less than a week after CEI filed our amicus brief, the Department of Homeland Security has thrown in the towel and agreed to allow New Yorkers back into the Trusted Traveler program. While DHS says it is based on New York’s amendments to the law, those amendments were signed into law months ago and DHS had previously maintained that they were insufficient. DHS has also now admitted that several of the assertions by DHS on the inability to safely vet applicants were inaccurate and the accurate information “undermine[d] a central argument in defendants’ briefs.” While CEI wasn’t alone in filing an amicus brief—there was also an amicus brief by 13 states opposing the federal government—we are happy to see a quick resolution in favor of federalism.