The Oath and Rusty Bowers

 From the final report of the January 6 committee:

In Arizona, a primary target of President Trump’s pressure, and ire, was House Speaker Russell “Rusty” Bowers, a longtime Republican who had served 17 years in the State legislature. Throughout November and December, Bowers spoke to President Trump, Giuliani, and members of Giuliani’slegal team, in person or on the phone. During these calls, President Trump and others alleged that the results in Arizona were affected by fraud and asked that Bowers consider replacing Presidential electors for Biden withelectors for President Trump.249 Bowers demanded proof for the claims of fraud, but never got it. At one point, after Bowers pressed Giuliani on the claims of fraud, Giuliani responded, “we’ve got lots of theories, we just don’t have the evidence.”250 Bowers explained to Giuliani: “You are askingme do something against my oath, and I will not break my oath.”251

US Travel Association and a Senator

Many posts have explained that interest groups encourage lawmakers to introduce favorable legislation, sometimes drafting the bills themselves.

This is not some idea McSally pulled out of thin air. It’s straight from the U.S. Travel Association - https://t.co/IooEuztwDp https://t.co/aIRQzNNaEv

— Kyle Potter (@kpottermn) June 23, 2020

The Pardon Power

Zoe Tillman writes at Buzzfeed:

The US Department of Justice's pardon office did not review former Arizona sheriff Joe Arpaio's pardon, a DOJ official confirmed to BuzzFeed News late Friday.
It didn't have to.

The US Constitution gives the president broad power to issue pardons and commute sentences, and there is no law requiring the president to consult with the Justice Department. President Trump is not the first president to issue a pardon that didn't go through DOJ, but he now joins the ranks of presidents who made controversial clemency decisions outside of the standard pardon process. And he did so with his very first pardon.

People can apply to the Justice Department's Office of the Pardon Attorney for clemency — in the form of shortened sentences or full pardons — and the attorneys there can make recommendations to the White House after reviewing the cases. The regulations that govern that process don't bind presidents to go through the Justice Department when they want to exercise their pardon power, however.

The Justice Department official said that the Office of the Pardon Attorney did not receive a pardon application from Arpaio, who was found guilty of criminal contempt in July for failing to comply with a court order that his office stop detaining people based solely on the suspicion that they were illegally in the United States.

Nullification

Associated Press reports:

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver's licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again - passing states' rights measures on all four subjects examined by the AP - despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear - the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn't like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn't stopped some states from flouting those federal laws - sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments - despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama's administration has made it known to federal prosecutors that it wasn't worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama's 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.

The Incumbency Advantage

Even in tough economic times, incumbent presidents have certain political advantages. The New York Times reports:

Every president lives at the intersection of policy and politics, never more so than during a campaign season. Locked in a tight race with Mitt Romney, Mr. Obama and his team have been pulling every lever of the federal government within reach, announcing initiatives aimed at critical constituencies, dispatching cabinet secretaries to competitive areas, coordinating campaign events to match popular government actions and forestalling or even reversing other government decisions that could hurt the president’s chances of a second term.

On Friday, Mr. Obama will designate Chimney Rock in Colorado a national monument, preserving thousands of acres and aiding tourism in another swing state, a decision shared Wednesday with a Denver newspaper. When he flew to Iowa last month, Mr. Obama arrived just as his administration announced drought relief for farmers and released a report promoting his support for wind power. After critics attacked him for inhibiting oil and gas production by considering an obscure lizard for the endangered species list, the administration decided it wasn’t so endangered after all.

The Chimney Rock move comes 16 years after President Clinton did something similar during his own reelection race.  Carl Cannon reported on September 19, 1996:

Hoping to galvanize his support among conservation-minded voters, President Clinton yesterday declared 1.7 million picturesque acres of federal land in southern Utah a national monument.

"Seventy miles north of here lies some of the most remarkable land in the world," Clinton said, bathed in sunlight and framed by the spectacular South Rim of the Grand Canyon. "Today, we are keeping faith with the future."

...
The decision was denounced by Republican leaders, especially those in Utah, as an election-season stunt. They argued that the move was intended to shore up Clinton's support among environmentalists in Western states such as California, Colorado and even usually Republican Arizona.

Clinton carried California and Arizona, and came very close in Colorado. His gambit inspired a story on The West Wing:

BARTLET [to Josh] What have you got?

JOSH The Antiquities Act. You're gonna establish Big Sky National Park. 

Bartlet laughs at the idea.

JOSH Yeah.

BARTLET I can do this?

JOSH Yeah.

BARTLET You understand it's a bunch of rocks, right?

JOSH I'm sure someone with your encyclopedic knowledge of the ridiculous and dork-like will be able to find a tree or a ferret that the public has a right to visit. 

As was often the case, the show took liberties with the facts.  Under the law, presidents can designate national monuments, not national parks.

State Legislatures Matter

Our chapter on federalism discusses the importance of state legislatures.  At the Washington Post, Chris Cillizza addresses this point, likening them to baseball's minor leagues:

But, like the minor leagues — where potential stars hone their craft — the state legislatures matter more than most people realize. Not only are they an incubator for young political talent but they also produce tons of legislation that draws national attention.

A few examples:

* The Arizona legislature’s controversial immigration bill, the most stringent in the country.
* The Virginia legislature’s bill regarding mandatory ultrasounds — transvaginal and otherwise.
* The photo identification law in Pennsylvania that has become a touchpoint in the broader voter ID fight nationally.
* The North Carolina House and Senate agreed to put Amendment One, affirming that marriage is between a man and a woman, on the ballot earlier this year.

There are lots (and lots) of other. But they all point to the same thing: State legislatures matter — big time. 

Arizona v. United States

Previous posts have dealt with Arizona's controversial law on illegal immigration.  The New York Times reports:

The Supreme Court on Monday delivered a split decision on Arizona’s tough 2010 immigration law, upholding its most hotly debated provision but blocking others on the grounds that they interfered with the federal government’s role in setting immigration policy.

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision, though they left the door open to further challenges. The provision requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally.

The justices parted ways on three other provisions, with the majority rejecting measures that would have subjected illegal immigrants to criminal penalties for activities like seeking work.

From the case syllabus:

1. The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to“establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and onits inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories ofaliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center,which provides immigration status information to federal, state, andlocal officials around the clock. Pp. 2–7.

2. The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determinedmust be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federalinterest is so dominant that the federal system will be assumed topreclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Second, state laws are preempted when they conflict with federal law, including when theystand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7–8.

Federalism and the Arizona Law

(Revised, 4/27 am)

The case of Arizona v. US  involves the state's controversial law on illegal immigration. The New York Times reports on this week's oral argument:

Justices across the ideological spectrum appeared inclined on Wednesday to uphold a controversial part of Arizona’s aggressive 2010 immigration law, based on their questions at a Supreme Court argument.

“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument against the measure.

...

 Verrilli, whose performance in the health care case was sometimes halting and unfocused, seemed on Wednesday occasionally to frustrate justices who might have seemed likely allies. At one point Justice Sotomayor, addressing Mr. Verrilli by his title, said: “General, I’m terribly confused by your answer. O.K.? And I don’t know that you’re focusing in on what I believe my colleagues are trying to get to.”

Oral argument also touched on issues of federalism. The Constitutional Law Prof Blog reports:

Arguing for the United States, Solicitor General Verrilli had barely finished "may it please the Court," when Chief Justice Roberts posed this query:

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.
When Verrilli answered "That's correct," Roberts again repeated his statement:
CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.
Justice Scalia quickly articulated a states rights perspective. Responding to the federal government's position that "the Constitution vests exclusive authority over immigration matters with the national government," Scalia asked:

JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Chief Justice Roberts explicitly stated "I don't see the problem with section 2(B)," perhaps explaining his earlier effort to clarify that the case was not about "racial profiling."
...

The discussions of preemption were often less focused on Congressional intent than on generalized federalism concerns, although at one point Chief Justice Roberts seemed to highlight the only precedent that mattered. Attempting to engage in an analogy, Verrilli argued:


. . . . if you ask one of your law clerks to bring you the most important preemption cases from the last years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there. That -- that doesn't make it --
CHIEF JUSTICE ROBERTS: What if they just rolled in Whiting?
(Laughter)
CHIEF JUSTICE ROBERTS: That's a pretty good one.
The analogy was never completed.

But if Arizona v. United States mimics Chamber of Commerce v. Whiting, decided last May and upholding the Legal Arizona Workers Act, we can expect a fractured opinion ultimately finding in favor of Arizona.

See blog post on Whiting. 

Meeting the President

In times of political conflict, personal meetings with the president can be fraught with controversy. Jeremy Gordon writes at The Wall Street Journal:

When the Boston Bruins visited the White House Monday to celebrate their 2011 Stanley Cup victory, they were without perhaps their most important player of their inspired championship run: goaltender Tim Thomas, who elected to stay at home rather than get an official commendation from President Barack Obama

 ... 

He isn’t the first athlete to snub Washington D.C., or even the first within the last year. In September, a handful of NASCAR stars like Tony Stewart and Carl Edwards wereunable to attend a White House ceremony in their honor, citing scheduling contacts. Last fall, Hall of Famer Dan Hampton declined to go after his 1985 Chicago Bears championship team was invited for a long-due celebration, saying “I’m not a fan of the guy in the White House.” And Chicago White Sox manager Ozzie Guillen went on vacation instead of visiting the White House of George W. Bush after his team won in 2005, though he never made any explicit political statement about it.

Thomas is, however, the most high-profile athlete to take such action.  He explained himself in a statement:

"I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT"

Meanwhile, another meeting with the president proved difficult. AP reports: 

Arizona Gov. Jan Brewer came to greet President Barack Obama upon his arrival outside Phoenix Wednesday. What she got was a critique of how he is depicted in her book. The two leaders could be seen engaged in an intense conversation.

Lopez Lomong, the Flag Bearer

Our chapter on citizenship has a photo essay on Lopez Lomong (born Lopepe Lomong)  South Sudanese refugee who became a champion runner and an American citizen. At The Los Angeles Times, Helene Elliott offers an update:

Millions of people watched runner Lopez Lomong carry the American flag and lead the United States delegation into the opening ceremony at the 2008 Beijing Olympics, marveling at the Sudanese refugee who survived unspeakable horrors before an American foster family took him in and gave him a new life.

Few people will see him repeat his flag-bearer role Friday in a different setting, but the occasion will be just as meaningful.

Lomong will be the standard bearer for Northern Arizona University's school of business at graduation ceremonies in Flagstaff, an honor bestowed by faculty members. After leaving school in 2007 to train for the Olympics, where he finished 12th in his semifinal in the 1,500 meters, he returned this semester to complete his degree in hotel and restaurant management. Again, he was chosen to lead his peers.

"It's an incredible thing," said Lomong, 26. "You can be in a refugee camp and not have anything, but you matter because this is a country that will give you an opportunity to accomplish whatever you want to accomplish in your life."

 At USA Today, Mike Lopresti writes:

He has brought two brothers to America and settled them in school in Virginia. He has started a foundation to help promote unity in South Sudan. He has spoken to whatever school his sponsor, Nike, would send him to, spreading the word to American students on what a good deal they have.

"I want to tell the kids that in this country you can go to sleep and you know you're going to wake up happy." Or at least not kidnapped by rebels.

And he has dreamed of London, particularly the medal he missed in 2008. "The goal is to run straight, then left turn as fast as anybody else, and win the gold medal for this great country.

"But first, graduation, and he's telling everybody it can be seen online. "There'll be lots of tears of joy," said the man who was once lost and has since been found. "I did it. I did it."