New Iowa law flouts U.S. Constitution's Supremacy Clause

Rick Morain is the former publisher and owner of the Jefferson Herald, for which he writes a regular column.

Where does your primary loyalty lie: as a citizen of America, or as a citizen of Iowa?

Probably seems like a meaningless question. But around the nation, more and more states these days are enacting laws in opposition to those of the federal government, placing the loyalty question front and center. And a growing number of U.S. residents are declaring a preference to honor their state laws above those of the United States.

ORIGINS OF THE SUPREMACY CLAUSE

In terms of settled law, there’s no real dispute: federal law outranks state law. The U.S. Constitution leaves no doubt. Article VI, Clause 2 (the “Supremacy Clause”), reads as follows:

The Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It’s why the United States flag always flies above the flag of any of the 50 states.

The very existence of the U.S. Constitution springs from a period of divided loyalties between local and national perspectives in the few years during and following the American Revolution. The Articles of Confederation, enacted by the wartime U.S. Congress in 1777 and ratified by all thirteen states in 1781, governed the nation until the Articles were superseded by the new U.S. Constitution in 1789.

Created to establish a “league of friendship” among the states, the Articles’ weaknesses almost immediately placed in jeopardy the survival of a new nation. Disputes over territory, war pensions, taxation, and trade soon proved unmanageable, and several of the Founders, including James Madison and George Washington, foresaw America’s demise unless a stronger foundation could be built. The danger led to the Constitutional Convention of 1787 in Philadelphia, and the present-day Constitution, including its Supremacy Clause, has governed the United States ever since.

But the supremacy of federal law has not been unopposed. The so-called “Nullification Crisis” from 1828 to 1833 offered one of the most powerful examples. The crisis occurred when a powerful tariff law, enacted in 1828 under President John Quincy Adams, met strong opposition in Southern states like South Carolina. Agrarian leaders there complained that the tariff created an unfair tax burden on the state’s residents, who had to buy most of their manufactured goods from outside the South.

Vice President John C. Calhoun, who served with President Andrew Jackson, resigned to run for the U.S. Senate in 1832 for a better platform from which to oppose the tariff. Calhoun and some other Southerners declared that the federal tariff violated the Constitution’s goal of equality among the states, and therefore a state could declare it null and void within that state’s boundaries. There were even calls for resort to armed resistance.

Cooler heads prevailed, and with subsequent amendments to the 1828 tariff, the crisis passed. But the idea of nullification, in its most extreme form of secession, did not die, and 30 years later the nation had to decide whether the Supremacy Clause would indeed prevail under the test of the Civil War.

IOWA IMMIGRATION LAW INTRUDES INTO FEDERAL POWERS

Many federal laws have met opposition since the Civil War, of course, but lawsuits brought by individual states against the U.S. government seem to have increased recently, with issues like abortion and immigration providing the impetus in the past few years. Iowa Attorney General Brenna Bird has joined numerous multi-state actions challenging Biden administration policies.

In a role reversal, the federal government is now suing Iowa.

In April, Republican state legislators approved and Governor Kim Reynolds signed Senate File 2340. The new law permits Iowa peace officers to arrest an undocumented immigrant who has previously been deported or barred from entering the United States. A state judge could order that the individual be deported back to his or her home country.

Principal U.S. Deputy Assistant Attorney General Brian Boynton notified Reynolds and Bird on May 2 that the U.S. Department of Justice would sue Iowa if necessary to block the new law.

Boynton cited specifically the federal government’s intent to enforce “the supremacy of federal law . . .”. Boynton’s letter stated, “SF 2340 is preempted by federal law and violates the United States Constitution.” He gave Iowa officials a May 7 deadline to suspend enforcement of the new law. He added that SF 2340 “effectively creates a separate state immigration scheme” that “intrudes into a field that is occupied by the federal government . . .”

SF 2340, Boynton added, seeks to counteract the federal Immigration and Nationality Act and provisions of federal laws that permit non-citizens “to seek protection from removal to avoid persecution or torture” back in their home country.

In a written statement, Reynolds countered that Iowa had to pass SF 2340 “because the Biden administration refuses to enforce the laws already on the books. I have a duty to protect the citizens of Iowa. Unlike the federal government, we will respect the rule of law and enforce it.”

Bird said in a news release, “Iowa will not back down and stand by as our state’s safety hangs in the balance. If Biden refuses to stop the border invasion and keep our communities safe, Iowa will do the job for him.”

Also suing the state over SF 2340 are the Iowa Migrant Movement for Justice and two individual plaintiffs (using pseudonyms). They are represented by civil rights groups including the American Immigration Council and the Iowa and national American Civil Liberties Union (ACLU).

The Des Moines Register noted that Iowa’s SF 2340 resembles a recent Texas law, Senate Bill 4, that federal courts have blocked while a lawsuit about its constitutionality is in play.

When Boynton received no response from the state of Iowa to his request that Iowa suspend enforcement of Senate File 2340, the federal government sued the state on May 9, citing both the Supremacy Clause and the Commerce Clause. The Constitution’s Commerce Clause gives the federal government ultimate control over U.S. commerce, and a number of federal laws and court decisions make it clear that “commerce” includes immigration matters.

The federal lawsuit against Iowa cites the fact that a number of Congressional acts give the United States control over immigration. Boynton notes that because international interaction requires flexibility to preserve satisfactory relations among nations, the U.S. government enjoys broad power to determine immigration policies.

The lawsuit cites a number of Supreme Court decisions that establish the federal government’s supremacy over immigration matters.

Getting back to the question that leads off this column: where will Iowans’ patriotism lie in this controversy, with the state or with the nation?

For some, it won’t be an easy choice. Some of Iowa’s most demonstrative flag-waving “patriotic” residents can also be counted with those who most openly oppose migrants. Their dedication to the Supremacy Clause of the U.S. Constitution will be tested by SF 2340.

Most of us declare our fidelity to the rule of law. But when laws conflict, we sometimes find ourselves conflicted. In those cases, what determines where we come down?

My guess is that most of us take the easy way out, and leave it up to our personal politics to make the choice for us. For many conservatives, the U.S. Constitution’s Supremacy Clause will take a back seat to Iowa’s SF 2340, and loyalty to the state will prevail over loyalty to the nation.

Editor’s note from Laura Belin: You can read the federal government’s lawsuit against Senate File 2340 here, and the lawsuit filed on behalf of Iowa Migrant Movement for Justice and two individual plaintiffs here. U.S. District Court Judge Stephen Locher has scheduled a hearing on June 10 to hear arguments on plaintiffs’ motions for a preliminary injunction, which would block the state from enforcing the law when it is scheduled to go into effect on July 1.

Top photo was first posted on the Escucha Mi Voz Iowa Facebook page and is published with permission.