Indiana’s embarrassing Governor recently appealed a federal court ruling that he lacked authority to prevent resettlement of Syrian refugees in Indiana. From all reports, the appeal’s oral argument did not go well for the state.
A major reason for Pence’s loss in the District Court–and his probable loss at the appellate level–is that immigration is a federal issue over which states lack authority.
The notion that federal law should govern areas of national concern seems to rankle Donald Trump’s chosen running mate, and his annoyance isn’t limited to matters of immigration. In comments defending North Carolina’s discriminatory bathroom law, Pence recently insisted that the states “and the people” should be able to decide who gets rights.
The reason the 14th Amendment applied the Bill of Rights to the states was to ensure that a majority of people in a state could not use their local government to deprive their fellow citizens of the fundamental rights all Americans should enjoy.
There are areas in which the debate over local versus federal control are legitimate, but In the context of civil rights and civil liberties, “state’s rights” was and is a dog whistle meaning: we should get to pick on disfavored people if we want to, and the federal government shouldn’t be able to interfere.”State’s rights” was the (flimsy) cover used by defenders of segregation and Jim Crow.
What if we were to take that states’ rights “logic” to its ultimate conclusion?
What if the federal government couldn’t make states treat women or African-Americans equally? If I’m a woman living in, say, New York, and New York does choose to protect me, do I take a risk driving through, say, Alabama or Indiana, states that don’t protect women’s equality? If I am an African-American supplier doing business with national companies, do I hire a lawyer to tell me which states I can enter to visit with my customers, confident that I can find a hotel room or a restaurant that will serve me?
Shouldn’t Americans expect their fundamental rights to be respected in all of the states of the union?
There are certainly areas of the law that are local in nature. It would be nonsense to have a national zoning law. Certain criminal statutes are better enforced at the state or local level. There are others. But in a country where people move freely and frequently, where commerce and transportation and communication are national, the notion that states should be able to legislate different levels of basic citizen rights is not just impractical and unworkable, not just unfair and inequitable–it’s profoundly stupid.
Of course, for people who want to normalize discriminatory behaviors–what Hillary Clinton quite accurately called deplorable behaviors–the notion that the Supremacy Clause and/or the Bill of Rights might legally prevent them from doing so evidently pisses them off.
Pence refused to call even David Duke “deplorable.” I for one am pretty happy that my right to equal treatment under the law isn’t his or the Indiana General Assembly’s to decide.