pittsburghlive.com
By David Rivkin
Tuesday, January 3, 2012

The Obama administration has taken federal-state relations to a new low in its quest for an unprecedented expansion of presidential power. In response to Arizona's efforts to identify and arrest illegal aliens, the president claims that he can pre-empt state law whenever its enforcement might irritate a foreign government.

This unconstitutional power grab cannot stand.

Under the Constitution, some powers are exclusive to the federal government or the states while others are shared. By limiting the federal government's reach to authorities found in specific, enumerated grants of power, the Constitution reserves broad authority for individual states. States retain traditional "police power" to legislate on issues of public safety and welfare.

Arizona relied on its police power in passing the immigration-related law that the Obama administration has challenged. That law's most controversial provisions make Arizona state and local law enforcement responsible for investigating possible violations of federal immigration law.

If an officer has reasonable suspicion that a person encountered during a police stop or detention is in this country illegally, the officer must check the person's immigration status. If immigration authorities confirm that the person is illegal, the officer must arrest him or her.

No one disagrees that Congress could pre-empt state efforts to enforce immigration law under its constitutional power to "establish a uniform rule of naturalization." But Congress actually rejected that approach.

The Obama administration claims that federal power pre-empts Arizona's law in two ways. First, it has argued that under the Constitution's "supremacy clause," federal law prevails when state law conflicts with it.

But no precedent suggests that the president's refusal to carry out Congress' wishes somehow prevents a state from doing so or renders its actions contrary to congressional intent, which is the appropriate standard for pre-emption.

The administration's fallback argument is simply that the president has unilateral power under the Constitution to nullify Arizona's law. Mexico, the administration explains, has lodged complaints regarding Arizona's law, and this implicates the president's power over foreign affairs, which in turn trumps Arizona's immigration-related actions.

This is a stunning and audacious power grab. It simply cannot be that, despite all the Constitution's limitations on federal power and executive action, the president's powers become absolute whenever another nation complains.

Nearly 60 years ago, in the Youngstown, Ohio, case that famously reversed President Harry S. Truman's efforts to seize the nation's steel mills during the Korean War, Justice Robert Jackson explained that "when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." When those measures are also incompatible with the basic precepts of federalism, his power is nonexistent.

The fact that the Supreme Court granted swift review of the Arizona immigration-law case suggests that it will repudiate the Obama administration's imperial power grab.

David Rivkin served in the Justice Department during the Ronald Reagan and George H.W. Bush administrations. Joe Jacquot is a former deputy attorney general of Florida and former chief counsel of the Senate Judiciary Committee's subcommittee on immigration.

Read more: Obama's ham-handed power grab - Pittsburgh Tribune-Review http://www.pittsburghlive.com/x/pitt...#ixzz1iOwQ6Xlt