More than half of the states, as of last report, have placed restrictions on Syrian Refugees entering their states until the federal government can show a better screening program to insure that our Muslim sympathetic president has screening programs in place to screen out potential radical Islamic extremists. Most of the states came on board after the tragic slaughter of French citizens on November 13, 2015, by radical Islamic extremist terrorists, at least one a Syrian refugee. Can they do so? Seemingly all establishment media “experts” say no but a deeper understanding of the Constitution, in the tradition of the Founding Fathers, says yes.
Those who say no primarily center their argument on a Supreme Court ruling and a 1980 law. Hines v. Davidwitz reads in part: “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” Proponents next use the Refugee Act of 1980 which gives the President power to accept refugees facing “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States. This is even more so in an “unforeseen emergency refugee situation.”
Yes, national powers are left with Congress and the President operating together. The problem is, the president has a history of refusing to enforce existing national law on illegal immigration and to consult with Congress on this matter operating entirely unilaterally, even going around Congress on executive amnesty. Confidence in this President to defend our borders is at an all time low — much lower than any prior president. Yes, when the Refugee Act of 1980 was passed it was a procedural process that Congress gave to the President allowing him to initiate action when these circumstances exist without coming back to them, but this time such is complicated by several factors. The enemy of the world today is radical Islamic extremists. These people cite the United States as their number one enemy and our intelligence community tells us that they may have infiltrated the Syrian refugee population that would come into the states. The real question than is do states have the right to protect their people from a Muslim sympathetic president who refuses to do so?
The most proper response from Congress is to immediately rewrite or rescind the Refugee Act of 1980 returning this power to them, as it is not a presidential power listed in the Constitution under Article II. Predictably a veto would follow. If an override is not successful then the House of Representatives could use the purse powers, Article I, Section 7 to defund immigration from Syria.
Failing these measures the States, under Federalism, the concept of dual sovereignty upon which our republic is based, could constitutionally use the Doctrine of Nullification to refuse compliance to obey this ill-advised mandate. This is normally suggested when the federal government exceeds the listed powers in Article I, Section 8 thus forcing the states to use Amendment 10 which identifies powers not listed in the Constitution as belonging to them. In this case it is suggested when the federal government seemingly intentionally refuses to protect our borders and the states believe they must do so to protect their citizens. It becomes a matter of national survival.
The Doctrine of Nullification has several historical precedents. Thomas Jefferson and James Madison attempted to nullify The Alien and Sedition Acts in 1798 created by their Federalist Party predecessors. These authors penned the Virginia and Kentucky Resolves objecting on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. The bill was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election) thus the issue died naturally assisted by resistance of these states.
Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them and neighboring states to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.
The third attempt was with respect to The Fugitive Slave Act of 1854 just prior to the Civil War. Several northern states, led by Wisconsin, refused to accept the portion of the Compromise of 1850 requiring them to return to the South fleeing slaves. Enough states followed and the federal government lacked the will to fight its own. That is the secret.
More recent uses of the Doctrine of nullification include: Federal medical marijuana laws are openly defied by many states. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away.
Yes, a deeper understanding of the Constitution does justify the use of the Doctrine of Nullification but there exists other resistance measures that are more common and that first should be tried.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.