Wayne Heimer: A Supreme Court ruling for Illinois revives a question Alaska should have asked decades ago

By WAYNE E. HEIMER

Let me get this straight: The United States Supreme Court has just ruled that the president can’t deploy the National Guard to Illinois. That’s because highest court in the land says the Executive Branch can’t show any authority that allows it to deploy the National Guard to manage enforcing federal immigration law in Illinois.

Supreme Court rules no National Guard to Chicago for now

Whether one agrees with deploying the National Guard to support enforcing federal law where the National Guard is not wanted by local officials or not, the Supreme Court decision should be considered a marvelous Christmas present to Alaska.

Here’s why:

Under the original federalist doctrine which drove the Declaration of Independence and the US Constitution, the states are sovereign.  We had a civil war to test the limits of individual state sovereignty.  Now the states are “kinda sovereign.” Limited sovereignty matured into the doctrine of ‘greater sovereignty,’ which means that when national laws are in conflict with state laws, the states have to defer.

Casual immigration, as practiced under the previous national administration, resonates with some blue state officials. Still, existing immigration law remains the federal law which states must honor above the impressions of their elected mayors or governors.  Illinois just won a case at the Supreme Court saying the President could not send in the Guard using his chosen justification.

In Tuesday’s Supreme Court decision, the highest court finding was that the present administration (that would be the Executive Branch of government) showed no constitutional or legislated authority to deploy the Guard as it argued.  There are some constraints, apparently argued successfully by Illinois, on presidential deployment of the National Guard.  I don’t know what those are.

However, if documented constitutional or legislated authority is required for the Executive Branch to act (deploying the Guard), and the Executive Branch has not shown or convinced the Supreme Court it has that authority; either the Executive Branch has been sloppy, the authority does not exist, or the Illinois case turns on an esoteric point that ‘we’ don’t yet understand.  Courts love the esoteric, and the higher the court, the greater the love of fine points of law.

What this has to do with Alaska is that the federal takeover of fish and wildlife allocation in Alaska was purely an administrative action by the Executive Branch.  In my/our time this became notable 40 years ago with Executive Branch expansions of the subsistence section of the Alaska National Interest Lands Conservation Act (ANILCA). Going back even farther, Executive Branch administrative overreach on federal lands seems to have gotten its start when President Teddy Roosevelt went on a camping trip with John Muir in Yosemite National Park prior to his first election.  (My source here may be a bit flaky. It is Kevin Costner’s stream-able production, “Yellowstone to Yosemite”).

On that camping trip John Muir convinced Teddy Roosevelt to manage federal lands (specifically National Parks that were being abused because of lack of protection for antiquities) by executive order rather than through Congressional action. Many years later, President Carter, who learned of this alleged, but now questionable, power to act unilaterally from his Secretary of the Interior (who had boned up on Interior Department history) started the modern ball rolling by his abuse of the Federal Antiquities Act (see the Costner documentary). Carter used executive orders to protect subsistence as though it were a hard artifact of history to force Alaska to accept a flawed ANILCA.  That’s a mostly forgotten fact of ANILCA history.

The paradox is this:  Illinois can tell the President he can’t send the National Guard to Illinois to support the letter of federal immigration law.  BUT the Executive Branch has gotten away with going outside the letter of the law with ANILCA to establish (by pure administrative fiat) the Federal Subsistence Board to allocate Alaska’s titled property (fish and game resources) in a discriminatory manner.

In the broader picture, the Supreme Court  has ruled the Executive Branch, cannot bully the “sorta-sovereign” state of Illinois to enforce federal LAW in Illinois.  However, in Alaska, the Executive Branch continues to enforce a flaky federal fiat of administrative  (not legal) action

It appears the corpulent, Democrat, Governor of Illinois has succeeded (at least for now) in telling the President to go pound sand because he lacks authority.  However, Alaska’s tall Republican governor seems bound to allowing federal philosophy, not law, to prevail with respect to ANILCA.

Hence, I must wonder why a succession of Alaska’s governors have not told a succession of presidents to go pound sand, as their administrations have repeatedly over-reached via administrative fiat. Please show me some authority for the federal takeover.

I think I know why this odd administrative bullying of Alaska persists:  Politically powerful special interests. But that’s another story.

Wayne E. Heimer was detailed to spend his last five years in state service documenting ANILCA overreach at ADF&G.   He only recently saw the Kevin Costner’s documentary and recommends it to all Alaskans.