The Supreme Court and the New Civil War by Linda Greenhouse
'In the civil war now being waged in this country, the combatants are not the blue and the gray of old. It’s the White House versus the blue states.
And the weapons aren’t cannon balls but rather the threatened withholding of federal money from “sanctuary” cities and states, the plan for the next census that would have the effect of shrinking liberal states’ representation in Congress, and the cap on tax deductions that will strike at residents of cities and states where high tax rates support decent public services.
While California is most prominently in the administration’s cross hairs — “California better hold on tight,” Thomas Homan, the acting director of Immigration and Customs Enforcement, said on Fox News in January — the free state of California is not the only target. Chilling headlines like a recent one in a local newspaper in New Haven — “ICE Lies in Wait at Elm Street Courthouse” — are appearing all over the country as federal agents stalk and capture undocumented immigrants and leave the rest of us to shudder at tactics we used to ascribe to countries we regarded with disdain.
Those old enough to remember the Rehnquist federalism revolution of the 1990s and early 2000s will recall how startling it was when Chief Justice William H. Rehnquist’s long-sought majority began to rein in the federal government’s authority over the states with an enthusiasm and to a degree not seen since the early years of the New Deal.
The federal government can’t “commandeer” the states to carry out its enforcement objectives, Justice Sandra Day O’Connor wrote for the majority in a 1992 case, New York v. United States, invalidating a federal plan to oblige the states to help dispose of radioactive waste. “Congress must accord states the esteem due them as joint partners in a federal system,” Justice Anthony M. Kennedy wrote in a 1999 case, Alden v. Maine, immunizing the states from suits for violations of federal labor law.
For those who remember the unsettling decade when decisions like these poured from the Supreme Court, the current reversal of polarity is head-snapping. The Trump administration is not only commandeering local courthouses as convenient places to trap its prey, it also seeks to punish cities and states that resist.
That effort ran into a major roadblock last week in the form of a decision by the federal appeals court in Chicago. . .
Judge Ilana Rovner’s decision for the three-judge panel is worth quoting at some length. (It shouldn’t be necessary or relevant to point out that all three judges were Republican appointees, but in the current climate, sadly, it’s a notable fact.) Attorney General Sessions, Judge Rovner wrote, “repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring. First, nothing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities. The only conduct at issue here is the refusal of the local law enforcement to aid in civil immigration enforcement through informing the federal authorities when persons are in their custody and providing access to those persons at the local law enforcement facility.”'>>>
https://www.nytimes.com/2018/04/26/opinion/supreme-court-new-civil-war.html?