Federalism and Opposition to Illegal Immigration Are Signs of Subversion, Obama Administration Claims

The Obama Administration’s Department of Homeland Security has developed new profiles of potential terrorists. Its definition of “right-wing extremism” is so ridiculously broad that you yourself may be branded as an extremist! For example, being “dedicated” to opposing “illegal immigration” is considered a hallmark of right-wing extremism by a new DHS report.

I’m a peaceful, Harvard-educated, constitutional lawyer married to an immigrant, but I am included in the list, too. That’s because I urged curbs on “federal authority in favor of state or local authority,” which DHS says is a sign of right-wing extremism. Specifically, I was one of the lawyers who got the Supreme Court to strike down a federal law (42 U.S.C. 13981) as a violation of states-rights (in United States v. Morrison (2000)). (That was only the second time in 70 years that the Supreme Court struck down a law passed under the Constitution’s Commerce Clause, so liberal critics claimed that my federalism-based argument was “extreme” — even though it was later vindicated by the Supreme Court).

I guess I shouldn’t be surprised about these false claims, given that the Obama Administration has lied about Supreme Court rulings and broken campaign promises, such as Obama’s pledge to enact a “net spending cut” and not raise taxes on people making less than $250,000 a year.

One would have thought that a belief in federalism, or enforcing immigration laws, would be viewed as an exercise of First Amendment rights, not a harbinger of terrorism. Government agencies that investigate people for their “politically incorrect” views can be held liable for violating the First Amendment, as happened in White v. Lee (2000), where a federal appeals court held that federal fair-housing officials could be sued individually for punitive damages for investigating citizens who spoke out against a group home for the disabled (in that case, mentally-ill substance-abusers).

The Department of Homeland Security’s incompetence is legendary.  It damaged airline security, which already was badly in need of improvement after 9/11, through its poor oversight over the federal Transportation Security Administration. The TSA fails to catch fake bombs three times as often as private security companies, and 2.5 times as often as the private companies the TSA replaced after 9/11. Obama would make things worse by implementing collective bargaining at the TSA — making it even harder to dismiss incompetent employees.

The Administration is no more competent overseas, where an indecisive White House is one factor in the spread of piracy. Piracy is rampant in the crucial shipping lanes off the coast of Somalia partly due to restrictions in a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, nominated by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign. Bizarre European human-rights conventions also are thwarting action against the pirates.

International “human rights” norms have been twisted into a restriction on freedom, rather than a way of protecting it. It’s now frequently claimed that hate speech, defined to include criticism of any religion, is a violation of international human-rights norms. Self-styled “human-rights” lawyers also claim that “customary international law” dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. An international committee has claimed that human-rights norms require “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”