The Left Reimagines the Supremacy Clause

March 31, 2022

By Brian Lonergan

Whenever a Supreme Court vacancy is being filled, we are often reminded of the Left’s interpretation of the U.S. Constitution as a living and breathing document. Put another way, America’s 233-year-old charter is subject to the editing and revision of nine judges in the most undemocratic of the federal government’s three branches. While the Court is often asked to interpret the Constitution, we are seeing increased pressure from activists and bureaucrats to reshape the Constitution to serve their agendas absent public accountability.

A favorite strategy in this endeavor is to step over the Constitution’s Supremacy Clause as if it were a puddle on a sidewalk.

In Article VI, paragraph two, the Constitution establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It sounds very clear-cut and unambiguous, right? Not so for the forces of progressivism, who never seem to cool their lust to impose their agenda across all aspects of American society.

The latest example can be seen in Washington state, where a district court ruled that a federal contractor had to pay its illegal alien and criminal alien detainees the state’s minimum wage of $11.50 per hour for working jobs in the detention facility.

The case is currently awaiting a hearing in the Ninth U.S. Circuit Court of Appeals, where the Immigration Reform Law Institute (IRLI) pointed out in a brief that Congress has set a $1-per-day rate for voluntary work by detainees at such facilities, a rate that aligns with the compensation paid to those in federal and state prisons and other facilities across the country. To follow Washington state law in this matter is a clear violation of the Supremacy Clause.

This raises some very interesting and legitimate questions. Why should a state law supersede—and undermine—federal law on immigration? Why should those who entered our country illegally be paid more than ten times what U.S. citizens get while in detention facilities?

The answers, not surprisingly, have more to do with partisan goals than humanitarian concerns. The Washington state lawsuit is part of a larger effort nationwide to make the cost of detaining illegal aliens unsustainable, with the goal of crashing the system for such detentions. With no detention system in place and an anti-borders philosophy guiding the actions of Congress and the White House, the only alternative would be a mass amnesty or quasi-amnesty—the holy grail of illegal immigration activists on the Left.

As the IRLI brief explains, there are sound reasons why states should not override federal law in this case. As foreign nationals under detention in the United States, the detainees are given free room, board and healthcare with no financial obligations in this country. Detainees also have an advantage over those in the U.S. correctional system, in that they are not prisoners. They are free to leave at any time—so long as they return to their homelands. Few, however, take the option to leave the country when so many activists are lobbying for them to stay.

Defiance of federal immigration law by sanctuary cities, counties and states was commonplace during the Trump Administration. A number of them sued Trump when then-Attorney General Jeff Sessions cited the Supremacy Clause and tried to deny them federal law enforcement grants for refusing to cooperate with Immigration and Customs Enforcement (ICE) agents to deport criminal aliens. It was one of many lawsuits by sanctuary communities claiming they were not beholden to federal law.

So, the Left is all-in on states’ rights against the oppressive feds, right? That depends on the party affiliation of those currently running the federal government.

Since taking power, the Biden Administration has been flying planes loaded with illegal aliens into myriad states under cover of darkness. Local leaders have not been notified, consulted or asked for cooperation. Apparently when the federal government is imposing policies that advance the spread of illegal aliens, these progressive states’ rights champions turn on a dime and become Supremacy Clause advocates.

This reimagining of the Supremacy Clause is not being done to make America more prosperous, or to improve the quality of American citizens’ lives. It is done only to push a radical agenda, one that Americans would surely reject if they were given a say. Beware of those proclaiming their fealty to the Constitution while actively making plans to undermine it.   

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at: Brian Lonergan, The Left Reimagines the Supremacy Clause, American Greatness, March 31, 2022.