By Bob Unruh
© 2010 WorldNetDaily
391461 04: Visitors look at the original copies of the Declaration of Independence, the Constitution and the Bill of Rights July 4, 2001 at the National Archives in Washington, D. C. (Photo by Alex Wong/Getty Images)
Two experts in the U.S. Constitution say it's in the fine print, but the U.S. Justice Department's use of a federal courtroom in Arizona to challenge the state's decision to protect its own citizens by beginning enforcement of federal law probably is appropriate.
A number of commentators have raised the point in the last few days that the Constitution requires that "in all cases … in which a state shall be party, the Supreme Court shall have original jurisdiction."
That on its face would appear to preclude U.S. District Judge Susan Bolton's preliminary injunction suspending major provisions of Arizona's new law cracking down on illegal aliens in the state.
She also is expected to oversee a trial on those points sometime in the coming months.
The argument was presented eloquently on the Canada Free Press, where a commentator wrote, "'Original' jurisdiction means the power to conduct the 'trial' of the case (as opposed to hearing an appeal from the judgment of a lower court). You all know quite well what a 'trial' is – you see them all the time on TV shows: Perry Mason, Boston Legal, The Good Wife, etc. Witnesses testify and are cross-examined, etc. The style of the Arizona case shows quite clearly that the named defendants are: State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants."
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The commentary continued, "See where it says, 'State of Arizona'? And 'Janice K. Brewer, Governor of the State of Arizona, in her official Capacity'? THAT (plus Art. III, Sec. 2, clause 2) is what gives the U.S. Supreme Court 'original Jurisdiction', i.e., jurisdiction to conduct the trial of this case. THAT is what strips the federal district court of any jurisdiction whatsoever to hear this case. Judge Susan R. Bolton has no more authority to preside over this case than do you (unless you are a U.S. Supreme Court justice)."
But constitutional expert Herb Titus, who is affiliated with the William J. Olson law firm, said the full text of the constitutional provision needs to be noted, because it does not provide the Supreme Court with "exclusive" original jurisdiction.
He noted the constitutional text:
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
It is that provision that allows Congress to make exceptions and regulations that provides the authority for Bolton's court to hear the case, he noted.
"Could you imagine every case that involves a state as a party being before the Supreme Court. The court would be so loaded with those kinds of cases …" he said.
Another top constitutional expert, John Eidsmoe, of the Foundation for Moral Law, agreed.
"Congress can make exceptions out of that area," he told WND. "What the courts have said in areas where the court has original jurisdiction, Congress by its power to create exceptions, can add [responsibility or authority]."
But he noted the underlying case by the state of Arizona has a solid foundation.
President Obama's Justice Department has argued that the federal government – alone – has the authority over immigration and naturalization in the United States.
Thus, Attorney General Eric Holder's staff has argued, Arizona cannot enforce laws against illegal immigration – even if they align with the federal provisions.
But Eidsmoe confirmed that while the Constitution confers on the federal government to power to regulate naturalization, the same isn't true for immigration.
For years, in fact, the United States had separate bureaus for "immigration" and "naturalization." Immigration is the act of moving to the United States, while "naturalization" is the process of obtaining citizenship rights and responsibilities, he noted.
Those were not combined until 1933, he said.
The federal government's power over "immigration" would come from its authority over interstate and international commerce, but there's no indication that it's an "exclusive" authority, he explained.
"If this is a concurrent power, then if Congress and the states are in conflict, the supreme power of Congress will prevail," he said. But how would a supremacy issue affect a dispute should the state's laws simply mirror the federal statutes, he wondered.
Further, what rights would it give to a state should federal authorities renege on their responsibility for enforcement, he questioned.
"Arizonans could make a very good argument they are, in effect, being invaded," he said. One of the federal government's responsibilities under the Constitution is to protect states against invasion.
"Regardless of how this case comes out, Arizona has taken a stand, they have drawn to the nation's attention the fact that the executive department hasn't been doing its job in this area," Eidsmoe said. "They have made their point."
The difference right now is that while previous administrations knew there was a problem and that it needed to be addressed, the Obama White House appears to want the illegals in the U.S.
