Skip to content
Search

Latest Stories

Follow Us:
Top Stories

A Republic, if we can keep it

Part V: National supremacy

Opinion

Illegal immigrants detained in Texas

A Kinney County, Texas, sheriff's deputy arrives on the scene in March 2023 as Operation Lone Star officers arrest a driver for smuggling and detains immigrants who entered the country illegally.

Jabin Botsford/The Washington Post via Getty Images

Breslin is the Joseph C. Palamountain Jr. Chair of Political Science at Skidmore College and author of “A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation’s Fundamental Law.”

This is the latest in a series to assist American citizens on the bumpy road ahead this election year. By highlighting components, principles and stories of the Constitution, Breslin hopes to remind us that the American political experiment remains, in the words of Alexander Hamilton, the “most interesting in the world.”

We could all use a strong dose of John Jay in our current political brew.

Not known as an idealist, the New York diplomat and jurist nevertheless penned a rousing defense of America’s experiment in energized national government. “This country and this people,” he wrote in the second Federalist paper, “seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”

His point? That the United States is a divine and unique polity, one where the land and people are conjoined, forged by the bonds of injustice, and strengthened by a shared history of tenacity.


Of course, he was writing on the heels of the American Revolution, when most Americans experienced first-hand the violence and heartache associated with an international, and very public, divorce from Great Britain. He was trying to inspire. He was also trying to convince his fellow countrymen to ratify the proposed new plan of government and to reject the notion that “alien sovereignties” — states, in other words — were more equipped to protect our fundamental liberty. To be sure, his words were meant for a different generation of Americans.

Even so, they resonate just as powerfully today. Or at least they should, if we stop for a moment and consider how the current political landscape looks. I think it is fair to say that we are witnessing the most “unsocial” and “jealous” period of federal-state relations since the civil rights period of the 1960s.

Consider the bedlam at the southern border, one of the most intractable, and politically charged, issues of our lifetime.

Illustration No 1: the border feud between Texas Gov. Greg Abbott and the Biden administration. Abbott, a Republican, recently closed a large public park along the Rio Grande, refusing to allow federal Border Patrol agents access to roughly 2.5 miles along the U.S.-Mexico border. Through Operation Lone Star, Abbot wants to take control of the immigration problem, to strip away as much as possible the federal presence and to apply far more draconian measures on those seeking entry.

Abbott justified the action by citing the state’s “constitutional right to self-defense.” The problem is that immigration has historically fallen under federal jurisdiction. Denying federal Border Patrol agents entry into areas popular with immigrants is the equivalent of ignoring long-standing legal conventions that, for sound and good reasons, relegated state authority. And yet Republican governors around the country, as well as members of the GOP congressional caucus, are applauding Abbott’s rogue moves.

Illustration No. 2: Left-leaning governors are blatantly defying federal authority too. Six Democratic governors and two progressive Republican state leaders resisted President Donald Trump’s 2018 order to send National Guard troops to the southern border, say the White House’s policy of separating children from their parents was morally disqualifying.

Trump’s authority to activate National Guard troops was clear; it derived from several congressional statutes that permit presidents to “federalize” guard troops. Both Barack Obama and George W. Bush successfully used state guard troops. And yet when Trump tried to do so, these eight governors refused to abide by the orders. Oregon Kate Brown even took to Twitter to announce her defiance. “I have no intention of allowing Oregon’s guard troops,” she insisted, “to be used to distract from [Trump’s] troubles in Washington.”

This is a problem. When governors resist certified and widely accepted federal authority, they tatter the very fabric of American distinctiveness, what Jay referred to as the “strongest ties” that unite us. We succumb to those “unsocial jealousies” that he feared would be divisive. The entire plan for the American government is turned on its head. Doubtless, the same will be said when officials in Washington run roughshod over state jurisdiction, but those occasions are far more palatable because of the nature of our political design. Here’s how:

The Constitution mandates that the federal government is supreme. Not always and not in every instance. But mostly. Article VI, Clause 2 — the supremacy clause—as well as the 10th Amendment (which proclaims that states are only left with powers not already delegated to the federal government) went a long way towards shifting the locus of power from the states (under the abandoned Articles of Confederation) to the national government (under the Constitution).

That shift was crucial; from now on, the Founding generation agreed, the federal government will maintain command over those in the statehouses and the governor’s mansions. Those “alien sovereignties” are thus, by design, subordinate.

We can live with that hierarchy, of course, because our republican design for government encourages participation in federal elections: We can change the trajectory of policy in Washington through the ballot box, but we have no power to do so in states in which we do not reside. In other words, We the People collectively determine our national destiny. We decide, through our representatives in Washington, what direction we want to proceed, on immigration and most other policy areas. The same is not true when states outwardly challenge federal authority. Those who live outside Texas have no recourse when Abbott resists our collective will; the 90.1 percent of Americans who reside outside of Texas cannot vote him out of office. Federal supremacy has an inherent logic to it.

We are a divided nation, and some may find relief in the actions of these insolent governors. But history has shown that more unites us than divides us. Even during the late 18th century, the country was a pluralist amalgamation of distinctive identities. The South was very different from the North; the rural farmer was very different from the urban merchant; the Italian immigrant was very different from the Irish one; the Methodists were very different from the Anglicans. And yet for the most part Americans of all identities shared a similar birth narrative, and a common cause in the enduring quest for freedom, justice, and peace. Politics was present then — it has always been present. But party affiliation wasn’t the uniform worn by the enemy and governors didn’t defy federal power for name recognition and electoral posturing.

If we could recover just a portion of Jay’s optimism, just a small sense that the country and its people were “made for each other,” we would emerge in a far better place. If we could put regional differences aside and embrace the ideal that, in the national sense, we are a “band of brethren,” we would honor the splendor that is the American political experiment. Our vitality, John Jay precisely declared, is found in our unity.


Read More

An ICE agent monitors hundreds of asylum seekers being processed upon entering the Jacob K. Javits Federal Building on June 6, 2023 in New York City. New York City has provided sanctuary to over 46,000 asylum seekers since 2013, when the city passed a law prohibiting city agencies from cooperating with federal immigration enforcement agencies unless there is a warrant for the person's arrest.(Photo by David Dee Delgado/Getty Images)
An ICE agent monitors hundreds of asylum seekers being processed.
(Photo by David Dee Delgado/Getty Images)

The Power of the Purse and Executive Discretion: ICE Expansion Under the Trump Administration

This nonpartisan policy brief, written by an ACE fellow, is republished by The Fulcrum as part of our partnership with the Alliance for Civic Engagement and our NextGen initiative — elevating student voices, strengthening civic education, and helping readers better understand democracy and public policy.

Key Takeaways

  • Core Constitutional Debate: Expanded ICE enforcement under the Trump Administration raises a core constitutional question: Does Article II executive power override Article I’s congressional power of the purse?
  • Executive Justification: The primary constitutional justification for expanded ICE enforcement is The Unitary Executive Theory.
  • Separation of Powers: Critics argue that the Unitary Executive Theory undermines Congress’s power of the purse.
  • Moral Conflict: Expanded ICE enforcement has sparked a moral debate, as concerns over due process and civil liberties clash with claims of increased public safety and national security.

Where is ICE Funding Coming From?

Since the beginning of the current Trump Administration, immigration enforcement has undergone transformative change and become one of the most contested issues in the federal government. On his first day in office, President Trump issued Executive Order 14159, which directs executive agencies to implement stricter immigration enforcement practices. In order to implement these practices, Congress passed and President Trump signed into law the One Big Beautiful Bill Act (OBBBA), a budget reconciliation package that paired state and local tax cuts with immigration funding. This allocated $170.7 billion in immigration-related funding for the Department of Homeland Security (DHS) to spend by 2029.

Keep ReadingShow less
Towards a Reformed Capitalism
oval brown wooden conference table and chairs inside conference room

Towards a Reformed Capitalism

Despite all the laws and regulations that apply to corporations, which for the most part are designed to make corporations more responsive to the greater good, corporations have wreaked great harm on our environment, their workers, their customers, and the general public. Despite all the rules, capitalism can still pretty much do what it wants.

The problem is not that the laws and regulations are not enforced, although that is partly true. The problem is more that the laws and regulations are weak because of the strong influence corporations have on both Congress (this is true of Democrats as well as Republicans) and those responsible for regulating.

Keep ReadingShow less
Families of Americans Overseas Wrongfully Detained Bring Advocacy to Capitol Hill

The Bring Our Families Home campaign brought together loved ones of Americans wrongly detained overseas to display portraits in the Senate Russell Rotunda on Wednesday, May 6.

(Jacques Abou-Rizk, MNS)

Families of Americans Overseas Wrongfully Detained Bring Advocacy to Capitol Hill

WASHINGTON – American journalist Reza Valizadeh visited his elderly Iranian parents in March 2024 for the first time in 15 years. Valizadeh’s stories for Voice of America and other U.S. government-funded outlets often criticized the Iranian regime. So before traveling, he sought and received confirmation that he would be safe from a high-ranking commander in the Islamic Revolutionary Guard Corps, a branch of Iran’s armed forces. However, in September that same year, the Islamic Revolutionary Guard Corps arrested Valizadeh, and Tehran’s Revolutionary Court sentenced him to ten years in prison for “collaboration with a hostile government.”

In the Rotunda of the Senate Russell Building last week, the Bring Our Families Home campaign set up portraits of Valizadeh and 12 other Americans currently wrongfully detained overseas. The group, family members of illegitimately detained Americans, appealed to Congress to push for their safe return. Each foam poster board included the name, home state, and country of detainment. The display also included portraits of the 33 people released after advocacy by the James W. Foley Foundation.

Keep ReadingShow less
DHS Funding During the Shutdown
Getty Images, Charles-McClintock Wilson

DHS Funding During the Shutdown

When Congress failed to approve funding for the Department of Homeland Security for the remainder of this fiscal year in February, almost all of its employees began to work without pay. That situation changed, however, on April 3, when President Donald Trump issued a memorandum ordering the DHS secretary and director of the Office of Management and Budget to “use funds that have a reasonable and logical nexus to the functions of DHS” to pay its employees and issue back pay.

Trump shifted money to avoid the political embarrassment that would be caused by the collapse of airport security screening through the actions of disgruntled agents and the disruption to air travel that would ensue. But it’s legally dubious.

Keep ReadingShow less