By Robert Duchemin
Some parts of the US Constitution are discussed in the news on a regular basis. Few people, however, ever read the constitution and far fewer understand it. Even the parts that are often discussed are often mis-stated. For example, the Constitution does not state “separation of church and state.” The First Amendment states, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof;. . .” Over the years this has caused people to come to the conclusion that there must be a separation of church and state. That topic is best saved for another article. I only use it here to point out that few people read and understand the actual language in the Constitution.
Nowhere is that more clear than in the recent development of “sanctuary cities” and now “sanctuary states.” California and a few other liberal states have gone so far as to prosecute state employees who assist the federal government in support of federal laws. All of these sanctuary declarations and prosecutions, however, are entirely unconstitutional.
First, Article I, Section 8.4 grants to Congress the exclusive right to establish a “uniform Rule of Naturalization, . . .” When a city or state creates any immigration-related “rule” that is not by Congress made uniform, it is in violation of the Constitution. Article VI of the Constitution causes more problems for the sanctuaries.
The second section of that article is called the “supremacy clause.” It states, “This Constitution and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, anything in the constitution or laws of any state to the Contrary notwithstanding.” The law journals are full of cases where judges, both federal and state, have held that federal law is superior and trumps (no pun intended) any state law that contradicts it. This alone should cause the state and local laws to the contrary to be void.
But there is more. Section 3 of article VI, states in part, “[T]he Members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution. . .” This provision requires that all government officials in every state pledge their support for the Constitution as a condition of holding their office or employment.
But there is more. Before the Civil War, it was not clear what would happen if state government officials did not support the Constitution. The 14th Amendment changed that. Section 3 of that Amendment states in part, “No person shall . . . hold any office . . . under any state, who, having previously taken an oath as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies of the same . . .”
As these sections of the Constitution are applied together, they require that all legislative, judicial, and executive officers in every state pledge their support for the Constitution. Once they make the required pledge, they cannot continue to serve in any government post in any state after they have violated their oath.
Argument can be made that openly refusing to follow the Constitution is not the same as insurrection or rebellion. That argument, however, must fail because a continuing pledge to support the Constitution is required. Upon openly defying the Constitution, the pledge is clearly violated and can no longer serve to support the position. Therefore, the person who made the pledge should be removed from office.
Moreover, people who entered this country illegally are by definition criminals and therefore enemies of the state. Giving them sanctuary is the same as giving them comfort and aid. Consequently, any legislator who has voted for sanctuary and any judicial or executive officer of any state who has attempted to enforce that state‘s laws against cooperation with the federal government has violated their oath. Under the Constitution, they should be removed from office.
The Trump Administration is fighting sanctuary cities and states the wrong way. The Attorney General should order the United States Attorneys in all sanctuary districts to file a civil action in federal court to remove all legislators and city and county commissioners who voted for such legislation or ordinances supporting sanctuary status and to remove from office all judges and executive officers (prosecutors, police, city clerks, etc.) who attempted to enforce the sanctuary laws and ordinances. The cost of electing or appointing new officials alone should cause most municipalities to immediately repeal all sanctuary laws. If they do not, a second round of removals should do the trick.
Although they often do not act like it, the Department of Justice is inundated with people who have been to law school. Sooner or later one of them will figure out that all of the sanctuaries are in violation of the Constitution. When they do, municipalities and states that have become self-proclaimed sanctuaries will face considerable costs and every legislator or commissioner who voted for sanctuary will be barred from ever again serving in a government position. Threat of the latter alone will cause most feckless politicians to repeal the laws and beg forgiveness.
Finally, if the Trump administration does not follow this approach, the final sentence of the First Amendment arguably gives every citizen in a sanctuary city or state the right to file a petition asking to have the government officials removed. If it comes to that, both the pro-sanctuary officials and the Trump Administration will look stupid for failing to understand the very Constitution they pledged to support.