With the country facing unsustainable long-term structural deficits in the coming years, more and more lawmakers have been willing to broach the once untouchable subject of cutting defense spending to save money. House Majority Leader Steny Hoyer (D-MD) said a few weeks ago that “any conversation about the deficit that leaves out defense spending is seriously flawed before it begins.” Rep. Paul Ryan (R-WI) added that “there are billions of dollars of waste you can get out of the Pentagon, lots of procurement waste. We’re buying some weapons systems I would argue you don’t need anymore.”
Sen. Johnny Isakson (R-GA) tried to sing the right notes yesterday, saying with regard to defense spending that “there are savings everywhere. We should be looking, as a Congress, toward finding savings.” However, Isakson that bristled at the notion that a program the Pentagon has repeatedly said it doesn’t want should be cut:
One expenditure, the second engine for the F-35 program, did receive Isakson’s support. Secretary of Defense Robert Gates has recommended President Obama veto any defense spending bill that includes funding of the second engine. “The second engine makes sense from a standpoint of having a redundant system to protect the aircraft,” he said.
Gates has called the second engine “costly and unnecessary,” while U.S. Air Force Secretary Michael Donley has referred to it as “another rock” on top of the F-35 program.
Isakson is hardly alone in paying lip service to cutting defense spending while opposing actual cuts in weapons systems that no one wants. Rep. Mike Pence (R-IN) has said “if we are going to put our fiscal house in order, everything has to be on the table. We have to be willing to look at domestic spending, we have to be able to look at entitlements, and we have to look at defense.” But Pence also supports the second engine.
And then there is conservative darling Sarah Palin, who said in a speech last month that “no government agency should be immune from budget scrutiny,” but then proceeded to say that we absolutely must purchase all the weapons Gates says we don’t need. “[Gates] said we have to ask whether the nation can really afford a Navy that relies on $3 [billion] to $6 billion destroyers, $7 billion submarines and $11 billion carriers,” Palin said. “Well, my answer is pretty simple: Yes, we can and yes, we do.”
Since the federal government filed a lawsuit challenging Arizona’s immigration law, SB-1070, opponents of the Obama administration’s decision have repeatedly argued that the lawsuit has no legal grounding. Earlier this week, the bill’s sponsor, state Sen. Russell Pearce (R-AZ), insisted that there is no legal precedent in favor of federal preemption:
They talk about preemption. There’s never — and let me repeat, never has there been a preemption issue on states enforcing this law. And in fact, the courts have ruled many times in Pettis v. Gonzalez (ph) in the 6th, Santana (ph) in the 10th, Mueller versus Mena (ph) in a 9-zero landmark decision. I could go on and on with these case laws, where they constantly upheld states’ rights to enforce these laws. We enforce many federal laws. It’s outrageous, what they’re doing! This is about an agenda! This is a president that is acting like a dictator! This is a president who is ignoring the rule of law and siding with lawbreakers over the citizens of this country and the citizens of this state while damage is being conducted every single day! Every single day!
Quite the contrary, the courts have actually routinely ruled that immigration is under the purview of the federal government:
Plyer v. Doe: In this case, the Supreme Court ruled against a state statute denying education funding to undocumented children. In his concurring opinion, Justice Lewis Powell wrote “[t]he Court has traditionally shown great deference to federal authority over immigration. [...] [E]ven equal protection analysis in this area is based to a large extent on an underlying theme of pre-emption and exclusive federal power over immigration.” Most importantly, Powell concluded, “[g]iven that the States’ power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership seems evident.”
De Canas v. Bica: Justice William J. Brennan wrote in his opinion that “the power to regulate immigration is unquestionably exclusively a federal power.” The Supreme Court also articulated three tests that determine whether a law is preempted: Is the state or locality attempting to regulate immigration? (Constitutional preemption) Did Congress intend to occupy the field and oust state or local power? (Field preemption) Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both the state and federal law impossible? (Conflict preemption) The federal government challenge against SB-1060 focuses on Constitutional preemption, but there is certainly an argument to be made in favor Field and Conflict preemption.
Gonzales v. City of Peoria: Pearce was probably trying to cite Gonzales v. City of Peoria because the Ninth Circuit ruled that the “general rule is that local police are not precluded from enforcing federal statutes.” However, Pearce clearly hasn’t read the rest of the decision. The decision explicitly stated that though “state law authorizes Peoria police to enforce the criminal provisions” of the Immigration Nationality Act (INA), “this authorization is limited to criminal violations.” The Court also stated that officers “must distinguish illegal entry from illegal presence and must comply with all arrest requirements imposed by the federal Constitution.” This case will likely pose a problem for Pearce as SB-1070 does not distinguish between these two violations — one which is considered a felony under federal law, the latter a civil violation.
Proposition 187: In 1994, California approved a ballot measure which prohibited undocumented immigrants from using health care, public education, and other social services. However, federal Judge Mariana R. Pfaelzer found the law to be unconstitutional in 1997. “Proposition 187, as drafted, is not constitutional on its face,” wrote Pfaelzer. “California is powerless to enact its own legislative scheme to regulate immigration.” Besides not making a distinction between criminal and civil violations, SB-1070 also departs from federal immigration law by outlawing the solicitation of work in a public space (such as day labor), banning the transportation of an undocumented immigrant in most circumstances, requiring local police to enforce immigration law, and allowing Arizona residents to sue them if them if they believe they aren’t.
Lozano v. City of Hazleton: In 2006, the city of Hazelton, PA imposed steep fines on landlords who rented to undocumented immigrants and denied business permits to owners who hired them. In The Lozano v. City of Hazleton, ACLU and co-counsel successfully argued laws like Hazleton’s are unconstitutional because they usurp federal immigration policy. In his decision, U.S. District Judge James Munley argued that “Hazleton’s ordinances violate the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land.” Munley concluded that “any additions added by local governments would be either in conflict with the law or a duplication of its terms–the very definition of field pre-emption.” The case is now on appeal before the United States Court of Appeals for the Third Circuit.
As Mark S. Grube argued in the Cornell Law Review, “[t]here are no easy solutions to these conflicts, and litigation about a local government’s ability to combat the presence of undocumented immigrants is currently ongoing.” Regardless of what the final decision is on U.S. v. Brewer, Pearce can’t simply attribute the federal government’s actions to the President “ignoring the rule of law and siding with lawbreakers over the citizens of this country.” Obama, a former Constitutional Law professor, isn’t acting like a dictator — he and the DOJ have submitted a valid claim that will at the very least provide some much-needed clarity on how far states and localities can go in pursuing undocumented immigrants on their own.
Second, to Kyl, START ratification isn’t about START, it’s about Obama. While Kyl refuses to endorse the treaty, he does make it clear that his problem isn’t with the treaty, but with the President’s broader nuclear agenda. Kyl is a fierce advocate for building more nuclear weapons and advocates renewing explosive nuclear testing in Nevada, which makes him a stalwart opponent of the Comprehensive Test Ban Treaty and of the Obama-Kissinger-Shultz-Nunn-Perry global zero vision. But on the START treaty itself, Kyl seems to know that it’s a modest treaty that really just maintains the status quo put in place by Reagan. Hence, the majority of the op-ed is devoted to misleadingly complaining about funding for the nuclear weapons infrastructure – which the Bush administration underfunded for a decade, and which George W. Bush’s own nuclear administrator said he would have “killed” for Obama’s nuclear budget – as well as complaining about global zero. Kyl only leaves himself two short paragraphs at the end of the op-ed to put forth the tired discredited talking points about missile defense.
Third, Kyl’s tactic is to obstruct and delay. He says so almost explicitly. Demands for negotiating records – something presidents since George Washington have rejected handing over to Congress – and the notable statement that a vote on START shouldn’t happen until after the submission of the 2012 budget – which would mean next spring – is an indication that Kyl wants to delay the vote until the Senate numbers perhaps work better in his favor. This is also the same tactic Republicans in the Senate have used on almost every issue. Accusations that the treaty is being rushed through are totally false. The Senate now have all relevant documents, they have been reviewing the treaty for two months and have held more than 10 hearings. Calls for more time and more deliberation are just typical efforts by Republican Senators to obstruct.
Yet while Kyl now seems to no longer believe that there is any urgency to ratify the treaty, the fact is that ratifying START is incredibly urgent. Last fall, Kyl was singing a much different tune when he vigorously warned of the dangers of allowing the original START treaty to expire on December 5th. Kyl said on the Senate floor:
I urge my colleagues to consider what will happen on December 6, the day after the expiration of that agreement. For the first time in 15 years, an extensive set of verification, notification, elimination and other confidence building measures will expire. The U.S. will lose a significant source of information that has allowed it to have confidence in its ability to understand Russian strategic nuclear forces.
Yet now Kyl, seems content to trust the Russians for a whole additional year. In the meantime, our military is losing insight into the Russian nuclear forces and is clamoring for the treaty to be ratified.