Thursday, March 2, 2017

States Rights and the U.S. Department of Justice

Senator  Sessions,  Massive  Resistance  and States' Rights

Senator Jeff Sessions' nomination to become the next U.S. Attorney General has been broadly criticized by civil and human rights advocates. Criticism has focused on Sessions' attitudes toward blacks, and to a lesser degree, toward the LGBTQ community. Mr. Brooks and NAACP officials voluntarily went to jail in protest. Vida Johnson who teaches at Georgetown has organized a letter from 1400 law professors in opposition to Sessions. As despicable as racism is, there is another reason - perhaps just as compelling - to carefully scrutinize  Senator  Sessions' public record.

In the wake of Brown v. Board of Education, the landmark 1954  decision outlawing government-sanctioned racial segregation,  parts of the South  mounted  a campaign of massive resistance to federal law. "If we can organize the Southern States for massive resistance to this order I think that in time the  rest  of  the  country will realize that racial integration is not going to  be  accepted  in  the  South." With these words, Virginia U.S. Senator Harry Flood Byrd  launched  Massive Resistance, a deliberate campaign to  delay  and obfuscate  compliance with federal  law.

Opponents of the Brown ruling and integration used the doctrine of interposition, which argued that the state could "interpose" between an unconstitutional federal mandate and local authorities based on State Sovereignty. The General Assembly adopted a resolution of interposition in 1956 that clearly defied the authority of the federal courts.

Fortunately, after more than a decade of massive resistance, the south slowly but surely accommodated itself to open public accommodations. The schools desegregated, the parks integrated, city and county councils adopted single member district plans permitting the first wave of black  elected  officials, segregation academies  lost their luster.

Some Southerners never were reconstructed after the legal and social civil war that changed America in the middle of the 20th century.

As Attorney General Mr. Sessions will become the nation's prosecutor in chief. The massive resistance took the form of closed public schools, erection of memorials to confederate heroes, hoisting of Confederate battle flags, and in my hometown turning a public swimming pool over to seals, rather than permit black children access.

Over the past decade, Mr. Sessions offered legislation that would require states and cities to accept surplus military equipment. He offered to permit states to impose criminal penalties for violation of immigration law. He would  permit states to defy and delay federal enforcement of the Clean Air Act. He authored legislation excluding drinking water quality from fracking rules. Mr. Sessions' ideas are so extreme that most of these measures never made it out of committee and never became law. His states' rights positions are so extreme that his fellow conservatives could not support them in the Senate.

One of the main tenets of massive resistance and interposition was the notion that federal government had no role to play in state and local policy. The most visible symbol of massive resistance was Wallace statement in support of segregation now, tomorrow and forever. Massive resistance was fought out on the battlefield of race relations, but its philosophical underpinning was always broader.

It is useful to consider that we struggle today, more than 150 years later, with whether the civil war was fought over slavery, or states' rights to fashion their own economies. The great achievement of Dr. Martin Luther King and his followers was to make it inappropriate to discriminate based on race. But that momentous struggle for civil rights did not settle the question of states' rights.
The States Rights philosophy lives on. There is a theme that runs through Senator Sessions' public life that is more profound and more disqualifying than his racial attitudes, which  he has learned,with the  rest of the South to   euphemize.

Mr. Sessions' extreme strain of massive resistance to federal  law is compounded by the harm done to his own constituents. Alabama consistently ranks  in the  bottom quintile on every quality of life scale ...income, jobs, education, wealth, health. After decades of establishing a record in opposition to  all  federal  "intrusion", Senator Sessions' constituents are some of the nation's most disadvantaged.    A  review of his legislative record seems to support the view   that

Senator Sessions bears a grudge against the federal government, despite the fact that Alabama is perennially a net recipient of federal aid.

The Attorney General is the nation's chief prosecutor . Every prosecutor has immense choose which cases to bring, which defendants to negotiate with, which laws to prioritize for enforcement. Just as in the states, where the Attorney General represents the State, the U.S. Attorney General represents the United States. The United States is his client. Every lawyer knows that you cannot represent a client if personal, philosophical, professional or economic interests conflict with the client's to the extent that you cannot present the  merits of the client's case. It is worth examining the extent to which Mr. Sessions' long defiance of the role of federal government, and his apparent allegiance to State Sovereignty, disqualify him from representing the United States.