For more than a century, progressives have tried to read the 9th and 10th Amendments out of the Constitution. Some conservatives and libertarians periodically attempted to argue that the amendments could be used as a check on federal power: whenever they did so, the left assailed them as extremist cranks–that is when they did not accuse them of racism and other reprobate tendencies:
[Senator Mike] Lee is a “Tenther,” part of a new extremist movement that seeks to brand all major federal legislation — not only labor regulation, but environmental laws, gun control laws, and Social Security and Medicare — as violations of the “rights” of states as supposedly spelled out in the Tenth Amendment.
But that view is soooo pre-Trump. Post-20 January, 2017, the progressive left is enamored with these amendments, and is seizing upon them as a talisman to ward off the evil Trump spirits. Want proof? Look no further than Governor Moonbeam himself, Jerry Brown:
Despite some recent threats from the president to use federal funding as a “weapon” against the state if it voted to become a sanctuary state, the Democratic Gov. Jerry Brown gave a tough rebuttal in an interview on NBC’s “Meet the Press” this week from the nation’s capital.
“We do have something called the ninth and the 10th amendment,” Brown said.
“The federal government just can’t arbitrarily for political reasons punish the State of California, that’s number one,” he said.
Jerry Brown, Tenther. I wait with bated breath for The Atlantic to label him an extremist fellow traveler of Mike Lee.
Under Brown’s leadership, California is moving to become a “sanctuary state”. As such, it would not be able to prevent the operation of federal law enforcement of immigration laws, but it would bar local and state cooperation with such efforts. In response, Trump has threatened to pull federal funding, and it is this that Brown considers a violation of the amendments that his ilk previously considered Constitutional dead letters appealed to only by right wing freaks.
The sanctuary state movement (which includes Maryland as well) edges very close to advocating nullification of federal immigration laws: it is interesting to note that nullifiers on the right routinely appeal to the 10th Amendment. To do so in defiance of a Jacksonian president is quite risky, in light of how it worked out for South Carolina in the 1830s in its conflict with the original Jacksonian. Like Jackson, Trump may well take up the challenge. Because of his personality. Because immigration is one of his signature issues. Because he is on firm legal ground, since courts have been decidedly hostile to 10th Amendment based claims (although I would not be surprised if leftist judges followed the example of Brown and find a strange new respect for the 10th). And since politically it should cost little: California (and Maryland and other states likely to pursue sanctuary legislation) aren’t going to vote for Trump anyways. This is the kind of fight someone like Trump relishes.
But regardless of whether Brown and Trump come to legal blows over sanctuary status, it is beyond amusing to see progressives man the 10th Amendment barricades. I expect any day now that Jerry Brown will take up the states rights banner, and raise the Confederate flag over Sacramento. Even if he doesn’t go quite that far, the mere fact that he cites amendments that the left once scorned and which the hardcore right embraced demonstrates just how thoroughly Trump has scrambled American politics.