There Is No Hypocrisy From Either Side In This Fight Between Jeff Sessions And California

Conservative Who Thinks He’s Clever: “It’s so great that you LIBTARDS finally realize the Constitution has TEN Amendments.”

Progressive With ‘Vote Lisa Simpson’ Button: “Actually, there are 27 Amendments.”

Conservative: “Whatever. It’s just nice that you recognize STATES’ RIGHTS finally.”

Progressive: “So you think the feds should be allowed to commander local police? SAD!”

Conservative: “Jeff Sessions is going to sue to make California follow the RULE OF LAW.”

Progressive: “BRING IT ON!”

Conservative: “It’s been BROUGHT–EN–ED!”

It’s rare that you find a lawsuit where both sides are excited and energized by the prospects of fighting it out in court. But the decision of the Department of Justice to sue California over its “sanctuary” laws is one such case. Both sides actively want this fight. Both sides think they will prevail in a court of law. Both sides are fully prepared to blame judges of the opposing party for refusing to apply the law, should their side lose.

Both sides think the other side is being hypocritical in their arguments over sanctuary cities. Conservatives perceive progressives as adopting a “states’ rights” platform that progressives have opposed like, literally since the founding of the country. Progressives see conservatives making the same pro-federal law enforcement argument that conservatives decry whenever, say, little black girls require a federal escort just to go to school.

I see both sides as being fundamentally intellectually consistent in this battle; they’re both sticking to long held positions.

Sure, conservatives have long felt that the Tenth Amendment is supposed to protect states from federal overreach. But what they don’t say among polite company is that the federal overreach they’ve been trying to guard against is the kind that says: “You can’t oppress minorities or women or gays in your state.” They’ve adopted the Tenth Amendment as a justification for doing anything that isn’t specifically outlawed by the Thirteenth Amendment. States’ rights have always been a means to achieve bigotry: be it slavery, Jim Crow, or now “border security.” Sessions is promising them that, so they don’t actually care if it’s being brought to them via federal supremacy over state and local concerns. They never have.

Progressives, meanwhile, don’t feel the sting of hypocrisy when adopting Tenth Amendment arguments, because their goal has never been to protect states’ rights, but individual rights. It doesn’t matter the number of Amendment, First, Third, Fourth, Fifth, Sixth (I might have skipped one, I dunno), progressives are here for the individual protections enshrined in the Constitution. The Fourteenth, Fifteenth, and sure, Tenth Amendments are only useful insofar as they make it possible to apply those protections to people, regardless of where they happen to live or work. That the Tenth Amendment is a means to the ends of stopping bigoted immigration enforcement does not require progressives to twist themselves into knots.

The fact that the progressives are fighting for the rights of California while conservatives are supporters of the strong central government is of no more relevance than the fact at Gettysburg the Confederates marched in from the North while the Union came in from the South. It’s an interesting quirk, but the fundamental battle lines are the same as they always are.

Vox explains those battle lines quite eloquently, actually:

The fight over “sanctuary” policies is ultimately a fight over whether fear is a useful tool in immigration enforcement or an evil that can poison whole communities. The official position of the Trump administration is that any unauthorized immigrant in the US should be “looking over (her) shoulder” and worried that ICE will come after her at any time. The biggest change to policy under Trump hasn’t been the scope of deportations, or even of arrests — it’s been the aggressive messaging that anyone could be next.

Local and state officials who see unauthorized immigrants as part of their own communities, and who are concerned about the effects that targeting unauthorized immigrants will have on their legal-immigrant neighbors and US-citizen children, are trying to combat that fear. Laws that force ICE to put more effort into arresting and detaining immigrants are one way to do that.

There is no hypocrisy on either side of the aisle here. Sessions and his people deeply believe that putting the fear of God into brown families and children is GOOD. California and communities just like it think that fear is a BAD and immoral policy.

Non-lawyers like to act like the law is some kind of objective force that exists outside of practical concerns. For them, being on one side of the law in one context and then flipping to the other side in a different context smacks of sophistry and bad faith.

But lawyers are (and should be) entirely comfortable arguing whatever side of the law benefits your client. For progressives, that client has been and remains the individual rightsholder who should not be intimidated or terrorized by military or government forces. For conservatives, that client has been and remains the majoritarian white male who claims supremacy and dominion over others.

NOBODY HAS SWITCHED SIDES HERE. Sessions v. California is just the latest round of our usual fight.

Jeff Sessions’s lawsuit against California’s “sanctuary” laws, explained [Vox]

---

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.