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Posts Tagged ‘Federalism’

21st March 2011

It recently came to this blogger’s attention that the Immigration Equality Action Fund Blog is reporting that Americans are calling upon the Department of Homeland Security to change its policy regarding Lawful Permanent Resident status for LGBT spouses of American Citizens and Lawful Permanent Residents. To quote directly from the Immigration Equality Action Fund Blog:

In an interview published last night, Immigration Equality executive director Rachel B. Tiven calls on the Department of Homeland Security to stop denying green card applications filed by spouses of LGBT Americans.

Those who are unaware of the issues surrounding the debate for equal immigration benefits for the LGBT community should note that pursuant to the so-called “Defense of Marriage Act” (DOMA) the United States Federal government is prohibited from granting immigration benefits to same sex bi-national couples even though such benefits are routinely granted to different-sex couples. Meanwhile, a number of sovereign American States have heeded the call of their citizenry and taken measures which would allow legal recognition for marriages between individuals of the same sex. Notwithstanding that a marriage may be legalized and solemnized by a sovereign US State, such as Massachusetts, for example; the Federal government still will not recognize said marriage pursuant to the provisions of DOMA. To quote further from the Immigration Equality Action Fund Blog:

“It is imperative that the administration stop breaking up families based on a law that it says is unconstitutional,” Tiven told reporter Andrew Harmon. “We’re calling on the Department of Homeland Security to stop denying green card applications for the spouses of American citizens.”

As noted above, the result of continued enforcement of DOMA in an immigration context is the constant and continued partition of bi-national families. It would appear as though proponents of equal LGBT rights are hoping that DHS can take some steps to alleviate what is, for some, an increasingly untenable situation. To quote further from the Immigration Equality Action Fund Blog:

Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) – both important leaders on LGBT and immigration issues in Congress – joined Immigration Equality’s call for a halt to deportations involving legally married spouses. New York Senator Kirsten Gillibrand also weighed in, telling reporters that, ““The recent news of deportations involving legally married gay and lesbian binational couples is heartbreaking.”

This blogger highly encourages readers to click on the above links to learn more about the Immigration Equality Action Fund and the struggle for equal rights in the LGBT community. It should be noted that Representative Jerrold Nadler has been a strong proponent of legislation such as the Uniting American Families Act (UAFA), legislation designed to provide immigration benefits to same sex bi-national couples.

There have been many sovereign US States that have shown “true grit” in the struggle for equal LGBT rights, privileges, immunities, and protections. States such as Massachusetts, Iowa, Rhode Island, Vermont, New Hampshire, Connecticut as well as the District of Columbia have shown support for the struggle of equal rights for LGBT families. Meanwhile, continued enforcement of the provisions of the Defense of Marriage Act (DOMA) keep bi-national same sex couples from attaining equal immigration benefits when compared to their different-sex counterparts.

The issue of same sex marriage and equal rights for same sex couples is something that some have suggested is a divisive issue, but in this blogger’s opinion it need not be. For example, this blogger comes from a State (the State of Kansas) that explicitly forbids same sex marriage (yes, notwithstanding the State of Kansas’s position on same sex marriage this blogger feels that the right to marry whom one chooses is a civil right guaranteed to individuals under the U.S. Constitution that should be granted to those in Kansas as well as everywhere else in the USA, but the following analysis is primarily concerned with the same sex marriage issue in an interstate context). There are some who argue that this means that the State Courts are barred from recognizing same sex marriages legalized in other States. This blogger would argue that a different interpretation of the Full Faith and Credit Clause would allow a State such as Kansas to acknowledge that a legal marriage between two people of the same sex exists in fact in another American jurisdiction (say, Massachusetts, for example). Concurrently, the provisions of a State Constitution may prohibit any further State recognition or execution of a same sex divorce, but such a scenario is certainly better than the current state of affairs where no same sex couples are granted any type of Federal or interstate marital recognition at all. That said, none of these issues has yet to be fully resolved so any analysis remains speculation.

For related information please see: same sex visas.

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3rd March 2011

It recently came to this blogger’s attention through the Huffington Post website that a legislator in the sovereign State of New Hampshire has introduced a bill that could criminalize certain activities of the Transportation Safety Administration (TSA). To quote directly from the story posted on the Huffington Post official website:

A Republican state representative from New Hampshire named George Lambert has co-sponsored a bill that would make it a felony to touch or view someone’s private parts without probable cause.

Lambert was interviewed by MSNBC on Wednesday to discuss the bill, which would apply to TSA pat downs, as well as the agency’s x-ray scanners. The bill would essentially make it a sexual assault to conduct an invasive pat down or look at images of a traveler on one of the TSA’s new high-tech scanners.

Clearly, the TSA’s current policies on so-called “pat downs” (which many argue are unduly invasive and violate Constitutional protections prohibiting unreasonable search and seizure) and scanning are under fire from many different circles. However, the question must be posed: is New Hampshire Constitutionally permitted to enforce criminal sanctions against TSA officers? TSA officers operate under the jurisdiction of the United States Federal government’s Department of Homeland Security. Most currently binding American jurisprudence has found against the notion that State’s may enforce State law against Federal agents or institutions. The most notable case in this vein is probably McCulloch v. Maryland. In the language of the McCulloch decision, the Court found that the State of Maryland did not have the right to levy a tax upon the Bank of the United States. This decision set the stage for the, now rather sophisticated, premise that the States’ power to enforce State law is curtailed when attempting to enforce that law against the Federal government. Through later cases, this notion was expanded upon. This blogger recently found an interesting article on this topic entitled: What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause. This article delves deeply into the issues associated with Federal preemption of State prerogatives in matters pertaining to Federal operations and Federal agents and this blogger highly recommends those interested in this issue click on the link above to read this article.

It would appear from the plain language of the McCulloch decision that the States’ ability to enforce actions against the Federal government are not restricted completely. To quote directly from page 2219 of the What Kind of Immunity? article noted above, the article’s authors, Seth P. Waxman and Trevor W. Morrison, cited a section of the McCulloch decision which is noteworthy:

[N]o principle [of state power] . . . can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested insubordinate governments, as to exempt its own operations from their own influence.

At first blush, the above citation may appear to fully favor the Federal authorities on the issue of whether the sovereign State of New Hampshire has the authority to enforce criminal penalties against TSA officers, but one phrase is critical to an analysis of New Hampshire’s proposed legislation and that phrase is “legitimate operations“. In the McCulloch case, the Bank of the United States was deemed to be a legitimate operation of the Federal government notwithstanding the fact that the Constitution did not expressly permit such an institution because the Court reasoned that the Federal government, through the Necessary and Proper Clause, could establish a bank so as to facilitate the express Federal powers granted under the Taxing and Spending Clause. In short: the Federal government’s ability to tax and spend is considered a “legitimate operation” of the Federal government and if a bank facilitates that operation, then it is operating lawfully.

This analysis begs the question: Is groping Americans’ genitalia (also referred to as “enhanced pat downs”) and capturing nude body scanner images a “legitimate operation” of the Federal government? If not, then the State may have a right to enforce State criminal law against those who engage in such activity. That said, this issue is far from resolved and the State of New Hampshire has yet to actually promulgate this legislation, but clearly the issues noted above make for interesting jurisprudence.

For related information please see: US States.

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31st July 2010

In recent postings on this blog this author has discussed the Defense of Marriage Act (DOMA) and the ongoing US Court proceedings that are aimed at overturning this legislation in order to accord same-sex bi-national couples with privileges equal to their different-sex counterparts. Recently, a Court in Massachusetts found that the provisions of DOMA run contrary to the United States Constitution. As a result, this decision could greatly modify the framework by which Immigration petitions are adjudicated. Apparently, the Court wishes to delay radical modification of US Immigration law and procedure until such time as all issues can be addressed in an appellate proceeding. It would appear that many same-sex bi-national couples are waiting with baited breathe to see the practical implications of the recent Court decision overturning certain aspects of DOMA. However, there is some delay as the Immigration Equality blog explains.  To quote directly from the Immigration Equality blog as of July 27, 2010:

Many of you have had questions about the status of the DOMA case. Just like you, we are waiting for the court to issue an order which should be happening any day now. Once the order is issued, there will be an automatic 14 day stay. We are almost certain that during that 14 day period, the government will file an appeal and we are almost certain that the stay will remain in effect during the course of the appeal. But we will keep you updated as soon as we learn of any further developments.

Those reading this post are probably curious about the practical ramifications of the “stay” of this decision. The “stay” means that the current mechanism for adjudicating US Immigration petitions will remain in place, at least for now. Therefore, those Americans and Lawful Permanent Residents with a same sex loved one living abroad will still be unable to petition and apply for same sex family visa benefits pursuant to the provisions of DOMA. Many feel, and this author concurs, that the American appellate courts, including the United States Supreme Court, are likely to find DOMA unconstitutional pursuant to American legal doctrines such as “Full Faith and Credit” and “States’ Rights“. However, as the issue remains unresolved it is unwise for anyone to make any irrevocable decisions regarding US LGBT Immigration until a final judgment is handed down without reservation.

It should be noted that judicial intervention is not the only method available for those wishing to see same sex visa benefits accorded in the same manner for those in a same sex marriage or relationship as those in a different sex marriage or relationship. The Uniting American Families Act (UAFA) would provide a statutory framework whereby same sex “permanent partners” could be granted the same Immigration benefits as those in a different-sex marriage or relationship. Although UAFA-like legislation has seen unfailing support from legislators such as Jerry Nadler, many feel that the issue of LGBT Immigration rights will ultimately be adjudicated by the US Courts.

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