Trump bets big on obscure constitutional power that judges keep shutting down: expert

The Trump administration is invoking the supremacy clause of the U.S. Constitution to assert broad authority over states, and so far courts aren’t buying it, The New Republic’s Matt Ford argued in an analysis published Wednesday.

The clause says the Constitution and federal laws made under it are “the supreme Law of the Land.” Ford writes that the administration has taken “a much more aggressive view of the clause, wielding it as a tool to bludgeon Democratic-led state governments into compliance with its own policy agenda or, more accurately, self-serving desires.”

The first test was a lawsuit against New York City’s sanctuary policies. Last week, Judge Ramon Reyes ruled against the administration. He found the federal law at issue regulates governments, not private parties, so preemption doesn’t apply, and that the government would lose anyway because the Tenth Amendment prohibits forcing states to carry out federal enforcement.

“There is nothing within federal law that obligates states to participate in federal immigration enforcement,” Reyes wrote.

Ford says an appeal faces long odds given the Supreme Court’s strict stance in Murphy v. NCAA, a landmark 2018 ruling in which the court said the federal government couldn't preempt states' ability to legalize sports betting.

A bolder claim came in California, where the Justice Department sued to block counting ballots from about 20,000 people it labels “likely noncitizens.” Ford doubts the factual basis, noting a similar claim in Nevada fell from almost 16,000 names to 185, all later confirmed as citizens. He also notes California law doesn’t let noncitizens vote in federal elections, so there’s no conflict to preempt. No ruling in that case is reported.

A Florida judge, David Liebowitz, separately held that the federal noncitizen-voting statute the DOJ cites sets voter qualifications, a power he said the Constitution reserves to states. “Congress has no power to say who can vote or who cannot vote in federal elections,” Liebowitz wrote.

“An ill-advised defeat only limits its ability to act in the future,” Ford concluded.