When Does Federal Law “Trump” State Law?

OR DOES IT?

by Sharon Rondeau

(Feb. 25, 2017) — At approximately 10:15 AM EST on Friday, this writer received a text notification of an Amber Alert for a six-year-old child at the other end of the state, in Bridgeport, CT.  Within the next half-hour, a second message was received stating that the Amber Alert was canceled and the child located.

A number of local, state and national media outlets have reported the story, which saw Aylin Sofia Hernandez safely retrieved from the vehicle her father had crashed while evading police outside of Altoona, PA.  Authorities from four states were involved in apprehending the suspect, Oscar Obedio Hernandez, 33.

In the early hours of Friday, Hernandez allegedly murdered the girl’s mother and seriously injured her mother’s female friend in what police are describing as a horrific scene.

Aylin was found to have minor injuries and was to be reunited with extended relatives in Bridgeport in the near future.

An ICE detainer was placed on Hernandez and a transfer from Pennsylvania authorities to the Bridgeport Police Department under arrangement as of Saturday morning.  A call placed to the Bridgeport Police Department on Saturday morning seeking more information will likely not be returned until Monday, The Post & Email was told, due to the absence of a public relations representative over the weekend.

According to a spokesman for the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS), Oscar Hernandez was removed from the United States in November 2013 following “prior felony convictions from 2002 for assault and threatening, as well as several misdemeanor convictions.”

Unknown at this time is how long Hernandez was in Connecticut or the U.S. following his deportation. As the story unfolded on Friday morning, Fox61 reported that “[Bridgeport Police] Chief Perez also said Oscar Hernandez is known to Bridgeport police for another situation in which there was a restraining order against him. Police say this was for an assault case involving another woman, not Aylin’s mother Gonzalez.”

In regard to illegal aliens, Connecticut has two “sanctuary cities” in Hartford and New Haven.

On January 25, Trump signed an executive order denying federal funding to areas designated as “sanctuary jurisdictions.”  When the executive order met legal challenges, Trump cited a section of “8 U.S. Code § 1182 – Inadmissible Aliens,” which reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

A federal law, 8 USC 1373, states, in part:

(a) In general

Trump’s DHS Secretary, John Kelly, has focused on removing illegals already convicted of serious crimes, a promise which Trump made during his presidential campaign.

In response, on Wednesday, Connecticut Governor Dannel P. Malloy issued “guidance” to police chiefs and school superintendents across the state suggesting that “Connecticut law” takes precedence over “ICE detainer requests.”  The press release begins:

(HARTFORD, CT) – Governor Dannel P. Malloy and the commissioners of the Department of Emergency Services and Public Protection, the Department of Correction, and the State Department of Education today announced that – in response to increasing concerns regarding the impact that a recent presidential executive order on immigration matters and corresponding implementation memos from the U.S. Department of Homeland Security will have on the operations of local law enforcement and school districts – they are sending recommendations to every school superintendent and police chief in the state outlining suggested protocols to help these jurisdictions inform local decision making and communication efforts with families in their respective communities.

In June 2013, the Connecticut legislature unanimously passed the TRUST Act, the first of its kind in the nation, intended to compel local police departments to detain individuals for ICE evaluation only if they “have been convicted of a serious or violent crime, are on a terrorist watch list, are known members of a violent gang, or already have a deportation order.”

The law was an effort to reduce the state’s participation in the federal Secure Communities program, which some believe reduces trust between police and the communities they serve.

The legislation arose from the case of an illegal alien from New Haven who was arrested and charged with a crime but later cleared.  He was then scheduled for deportation by ICE, but with urging from Sen. Richard Blumenthal, a former Connecticut attorney general, and Sen. Chris Murphy, was released from jail the day Malloy signed the bill.

Over a number of years, the term “illegal alien” has been largely replaced with “illegal immigrant,” “immigrant,” or “migrant,” thereby conflating the differences between a person from another country who obtained permission to enter the U.S. and one who crossed a border without being admitted in accordance with laws passed by Congress.

According to FindLaw.com on the topic of “Federal vs. State Immigration Laws:”

Immigration is regulated at the federal level, chiefly under the rules established in 1952 with the passage of the Immigration and Nationality Act (INA). The Immigration Reform and Control Act (IRCA) of 1986 was enacted to curb illegal immigration, denying welfare benefits to undocumented immigrants and strengthening sanctions against employers who hire them.

The U.S. Congress has control over all immigration-related regulations, while the White House is in charge of enforcing immigration laws.

Jurisdiction and the Supremacy Clause

The federal government’s jurisdiction over immigration law has consistently been upheld by the U.S. Supreme Court, which has overruled attempts by state legislatures to single out immigrants. Additionally, the Supremacy Clause of the U.S. Constitution is generally interpreted to mean that federal laws trump state laws, except for certain matters constitutionally left to the states.

However, many states have passed legislation that limits undocumented immigrants’ access to public benefits, directs state and local police to check the legal residence status of arrestees and other directives that affect immigrants. Lawmakers pressing for immigration-related state laws typically cite a lack of federal enforcement and the need to conserve limited state resources, while some cite security concerns.

The legal resource then poses the question, “But are such state laws constitutional? While state lawmakers have articulated a genuine interest in limiting illegal immigration, there is no clear line in the sand.”

A spokesman for Malloy in the wake of the Bridgeport murder and alleged kidnapping said that “Our local laws are designed to protect our residents and also ensure that those in harm’s way feel safe seeking help from law enforcement. That’s why convicted violent felons are detained for deportation under our state laws that the governor has consistently and strongly supported.”

On Thursday afternoon, in response to a question from a Connecticut journalist, White House Press Secretary Sean Spicer expressed dismay at Malloy’s instructions to law enforcers and school administrators.  Much of the press in Connecticut does not provide an opposing viewpoint in its articles on the topic of ICE detainers and immigration status of Connecticut residents.

In response to Spicer’s criticism, the spokesman said, “We agree with one thing Mr. Spicer said — it is important to adhere to the ‘laws passed by the appropriate level of government.’ However, it would seem that Mr. Spicer and the administration would benefit from a Civics 101 refresher. Not only does the U.S. Constitution provide explicit protections for both individual rights, but it also provides clear guidance on the rights of states — specifically in the Tenth Amendment.”

The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In early 2010, Connecticut Democrats, who at the time dominated both chambers of the General Assembly, rejected a request to raise a Tenth Amendment resolution.  Malloy was not in the governor’s office at the time.

On Thursday evening, Malloy was Tucker Carlson’s guest on the Fox News Channel to defend the guidance memo and insist that it did not have political underpinnings.  During the interview, Carlson contended to Malloy that he is invoking the concept of “federalism,” or states’ rights, “selectively.”

Two years ago, in response to litigation initiated in opposition to Obama’s November 20, 2014 announced executive actions which would have allowed millions of illegal aliens to remain in the country under certain circumstances, Connecticut was one of 14 states and the District of Columbia which filed amicus briefs in support of the executive actions, which did not carry the force of law passed by Congress or by one or more state legislatures.

Almost immediately after Obama announced his intentions, the state of Texas and 25 others filed suit, contending that the actions were unconstitutional and imposed an undue financial burden on state governments.  In February 2015, U.S. District Court Judge Andrew Hanen placed a temporary stay on the implementation of the executive actions and later excoriated attorneys for the U.S. Department of Justice for having implemented some of the provisions without immediately disclosing it.

The Fifth Circuit Court of Appeals upheld the stay, and the U.S. Supreme Court, then in a 4 to 4 split, declined to disturb the lower court’s decision.  An appeal by the Obama regime during its final months in office for the high court to revisit its decision was refused.

In 2011, Alabama passed its own laws aimed at curtailing illegal-alien entry into the state.  Most of the provisions of the law were stricken down by the courts or revised by the state legislature as challenges arose.

On August 1, 2011, the U.S. Department of Justice filed suit against Alabama on the basis that “various provisions of H.B. 56 conflict with federal immigration law and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. The brief filed today makes clear that, while the federal government values state assistance and cooperation with respect to immigration enforcement, a state cannot set its own immigration policy, much less pass laws that conflict with federal enforcement of the immigration laws.”

Less than three months later, Justice sued the state of South Carolina for passing a similar bill, stating that:

In a complaint, filed in the District of South Carolina, the department states that certain provisions of Act No. 69, as enacted by the state on June 27, 2011, are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy, explaining that “the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.”  South Carolina’s law clearly conflicts with the policies and priorities adopted by the federal government and therefore cannot stand.

The following month, Justice sued the state of Utah for the same reason, with CNN quoting then-Attorney General Eric Holder as having said, “It is clearly unconstitutional for a state to set its own immigration policy.”

In April 2010, Arizona’s legislature passed HB 1070, which allowed local law enforcement officers to request identification from individuals who they suspected were in the state illegally, among other provisions.  At the time, Gov. Jan Brewer strongly defended the law and believed it would ultimately prevail in litigation.  However, in June 2012, the U.S. Supreme Court struck down as unconstitutional three of four provisions of the law, characterizing immigration as one belonging to the federal government.

Of the decision, Arizona Central wrote, “The long-awaited decision was a partial victory for Gov. Jan Brewer and for President Barack Obama, who sued the state of Arizona to keep the law from taking effect. By striking down the portions they did, justices said states could not overstep the federal government’s immigration-enforcement authority. But by upholding the portion it did, the court said it was proper for states to partner with the federal government in immigration enforcement.”

Under the doctrine of preemption, the Supremacy Clause of the United States Constitution (Article VI, Section 2) stands for the principle that federal law “preempts” (or trumps) state law in matters arising out of federal law. Because immigration laws and policy are federal in nature, the Arizona immigration law is being challenged on the grounds that it overstepped its exercise of power under the U.S. constitution. The U.S. Justice Department filed a lawsuit against Arizona in early July of 2010, arguing that immigration law is the domain of federal, not state, law.

In a little-reported development, on Thursday, the Fifth Circuit Court of Appeals ruled that a suspended Texas law “that enhances criminal liability for those who shield people in the United States illegally from law enforcement officers” suspended in 2015 can be reinstated.

After the mass shooting at Sandy Hook Elementary School in December 2012, Malloy signed stricter gun legislation which limited gun magazines to ten bullets and reclassified dozens of firearms as assault weapons, which now require registration.  During Malloy’s campaign for reelection in 2014, a “Sandy Hook mom” appeared in an advertisement advocating Malloy’s gun policies. According to The Connecticut Post, Malloy “enlisted the political consulting firm of President Barack Obama‘s former strategist, David Axelrod, to help weave the school violence issue into his campaign ads.”

Early last year, Malloy supported Obama’s executive order to “expand background checks and licensing requirements for buyers and sellers of firearms at gun shows and on the Internet.”  Malloy also attempted unsuccessfully to lobby Congress to pass stricter federal gun laws.