Obama lawsuit invites fortified state militia
Constitution leaves room for Arizona to secure border
OK. The Feds are challenging Arizona’s mild attempt to reinstate some semblance of enforcement to laws put in place, but subsequently not enforced by them. This of course is on the grounds that the states cannot act to enforce Federal law. This proposition raises some points of interest.
Does this mean that states (and localities) then must also not enforce any state or local laws against illegal drug trafficking, possession, or use, all of which are against Federal law also? Also, what then about localities and states that have licensed and tolerate businesses whose entire existence is in violation of Federal laws–specifically the so-called “medical marijuana” trade? According to common law wouldn’t this de-facto administrative annulment of Federal law establish a precedent for similar de-facto state and/or local administrative annulment of other Federal laws?
If this is the case then there is no basis for the Federal suit opposing Arizona’s willingness to take on part of the neglected task of the Feds to enforce their own laws. If it is NOT the case, then the Federal government is directly violating the equal protection of the Constitution by arbitrarily choosing to selectively enforce SOME of its laws while simultaneously ignoring others! (Just wondering, you know?)
Meanwhile, to get back to the point of the above cited and linked op-ed is that even if Arizona is NOT upheld by the court system, it is far from helpless in the face of the ongoing Mexican invasion…Arizona still has some options, ones that are fully allowable under some rather specific terms of the Constitution:
(Uff da! Here’s that pesky 2nd Amendment rearing it’s head again!)
…Arizona can form and expand its own state militia. Such forces were common when our nation was founded, and the Second Amendment recognizes that a “well-regulated Militia” is “necessary to the security of a free State.” In short, Arizona and other states can raise and arm their own military forces. But, for what purpose can such forces legally act?
(Ooops! Not JUST the 2nd Amendment at work.)
The Constitution is informative here. In Article IV, Section 4, the federal government is required to “protect each [state] against Invasion; and [on request of the state government] against domestic Violence.” As St. George Tucker noted, this provision guards against “the possibility of an undue partiality in the federal government,” for example a “sectional” president who might, for political reasons, decline to protect states in a certain region. Today the federal government, at the direction of the president, has declined to carry out its duty under Article IV. Leaving aside its other possible consequences, this intentional failure to protect Arizona raises the question of what action the state is now entitled to take under the Constitution.
[emphasis added]
Yes, what indeed CAN Arizona (and by extension any other state) do in this case?
This brings us to Article I, Section 10, Clause 3, which provides that “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Did you catch that? States MAY go to war under some circumstances WITHOUT “the Consent of Congress”!
“So, the militias organized and armed by a state may go to war when the state has been invaded or is in imminent danger. This is clear under Article I, and plainly justified when the federal government has deliberately failed to protect against invasion as required by Article IV. As Joseph Story explains in his treatise on the Constitution, the prohibition against states engaging in war is “wisely” limited by “exceptions sufficient for the safety of the states, and NOT justly open to the objection of being dangerous to the Union.”
So, the concluding summary from the piece:
At the time of our nation’s founding, the states surrendered certain limited powers to the federal government. Logically, foremost among the enumerated powers delegated to the new central authority were those relating to foreign affairs, including the war powers. But the states were prudent; they had a logical concern that if the federal government should fail in its duty to protect them from “invasion” or “imminent danger,” perhaps for reasons of political “partiality,” then the states should have a robust right to defend themselves, including by armed force. And so they do.
Hmmmm. Federal government “fails in its duty to protect”…for reasons of political “partiality”…? Sounds sort of familiar, somehow.