I see an interesting trend.

This week, two state laws were declared unconstitutional by the Supreme Court – Montana and Arizona – while the Affordable Care Act ruling due tomorrow could do the same.

Or, maybe it won’t.

But does it really matter in the long run?

We’ll get back to that question in a bit.


But first, the so-called states’ rights supreme court.  One of the rallying cries we’ve heard in recent years has gone something like this:

“The Supreme Court is getting filled with people who believe in old Constitutionalism – that most of the “progress” since the new deal violates constitutional limits, and must be overturned.”

But, if there’s one thing we actually learned from this week’s Supreme Court decisions so far, it’s that the court takes the opposite view – that the maintenance of federal power over the states is the primary goal.  Keeping the status quo – where federal law is always considered supreme – takes precedence over Constitutional originalism, and possibly even personal political views.

In the campaign finance case, the Supreme Court ruled that the Citizens United decision trumped state laws – like Montana’s – putting restrictions on corporate money in political races. It decided that individual states don’t have the ability to craft their own campaign-finance laws that contradict Citizens United, even – it appears – if those laws are for state and not federal races

In the ruling on the Arizona immigration case — which struck down three parts of that state law, but kind of upheld the “show me your papers” provision – the court maintained that states couldn’t make their own decisions on federal policy – even when simply attempting to enforce established federal law.

“The national government has significant power to regulate immigration,” Justice Kennedy said for the majority. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

The view of the court?  States better not “undermine federal law.”  Whatever that means.

And that’s not all.  On top of these two rulings, yesterday a federal appeals court ruled against Michigan, Texas and twelve other states – who sued to block new EPA rules which they felt infringed on their own retained powers under the Constitution.

The result?  Guess what.  The challenging states lost.  And, the decision virtually ensures that new emissions regulations will happen, even if Congress does nothing.   According to the federal court system, even unconstitutional agencies that shouldn’t exist have power over the states.


In the Montana case, the liberal court members were in favor of states’ rights – and dissented on the idea that a state was prohibited from enacting its own campaign finance laws, a liberal centerpiece.

The conservative court members – well, they seem to love the idea of states rights when it comes to immigration policy, but not on campaign finance.  They voted against Montana – in unison.

Over the years, liberal judges have been huge advocates for applying the First Amendment to the individual states, even though its wording specifically applies only to “Congress.”   Now, they seem to want it the other way around – because such precedent doesn’t fit their political views.

Conservatives, until a little more recently, opposed this view.  But have aggressively adopted it in recent years when politically advantageous.  This partisan-based ruling style will certainly come back to bite them in the future, too.

In Arizona, it was pretty much the opposite.  Even Scalia, who wrote a scathing dissent – made his support of federal supremacy clear.  He wrote – “Arizona has moved to protect its sovereignty – not in contradiction of federal law, but in complete compliance with it.”

For Scalia and Kennedy – and the rest – as long as you stay in “complete compliance” and don’t do anything to “undermine” federal law – you’re OK.  But, with thousands of federal laws, and laws that are hundreds of pages, such a view puts us all in an untenable and dangerous place.


By once again rejecting the idea that the people can and should make their own decisions on most matters on a state-by-state basis, the Court continues to set the stage for more and more centralized power.  And more conflict and disappointment for everyone.

By their rulings, they’re teaching individual activists to spend all their time on a federal level.

The message to conservatives in the Arizona case?  Immigration reform should start and end at the federal level. While it might not preclude states from trying to pass some immigration laws that aren’t explicitly proscribed – it certainly encourages them to focus most their energy trying to force their view on the entire country.

The message to liberals in the Montana case is pretty much the same.  Campaign finance restrictions should start and end at the federal level.  And even worse, the states are little more than federal counties, because state laws that affect nothing but the state can be under federal control too.

The best example of how this will all play out is in a statement released by Public Citizen in response to the Montana case:

“The court leaves us no choice but to continue to fight for stronger campaign finance laws to prevent corruption. We will do this at the congressional level, at administrative agencies, and the states, as well as work to overturn Citizens United by amending the U.S. Constitution.”

John Yoo over at the American Enterprise Institute published a near-replica in response to the Arizona ruling:

“opponents of President Obama’s immigration unilateralism should place their hopes in Congress and the political process. Congress could pass legislation overriding the Obama plan and enacting the beginnings of its own immigration reform.”


Look, I don’t like campaign finance laws, and I think Montana’s is bad for the people of that state.  And I think Arizona’s immigration law is awful too.  But if the people of those states want to make bad choices, I have no plans to try to force my supposedly better choices on them.

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So by ruling, once again, that uniform policies must reign over a nation of 50 states and 300 million people, the Supreme Court has continued its attack on the last vestiges of what’s supposed to make this country great.

Instead of being a massive country with a wide range of political, economic and social policies in our various states, the Court reaffirmed its view that we’re all supposed to act the same – or else.

And even if the Court rules in favor of the states on the Affordable Care Act tomorrow, the overall trend is overwhelmingly in favor of centralized power.

The message from the Court’s rulings is already being repeated by the far left through Public Citizen, and the far right through Yoo and AEI.

What’s that, you ask?

All roads lead to Rome.

We certainly know what happened in that story.  And it’s sad to see history repeating itself.

Michael Boldin

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