George Rebane
We see that SCOTUS has given the feds permission to remove some razor wire barricades from federal land on the Mexican border. This permission enables the anti-American Biden administration to enable more illegals to easily enter the United States. No consideration was given to national security in the ruling which included two so-called conservative justices. (more here)
Most of us know that the US Constitution primarily limits the powers of the federal government to those specifically delineated in the document. Powers absent are reserved for the states and its more local jurisdictions. The federal government is mandated by law to carry out and implement certain specified powers, among the leading is to provide for and maintain national security. This definitely includes securing the nation’s borders so that only lawful transit is both authorized and made possible.
Unfortunately, the Constitution is silent when it comes to the enforcement and execution of its provisions and derived laws when the federal government cannot or will not carry out its obligations. According to Rebane Doctrine, in such cases the natural and rational solution is to expand federalism by authorizing the states to fulfill such obligations and implement the functions of the absent federal government. A corollary to such a ruling would be to then prohibit the federal government from interfering with the states as they fulfill the constitutional obligations abandoned by the feds.
This new protocol could be implemented by a SCOTUS ruling in response to, say, a suit brought by any state harmed by the feds’ delinquent behavior. The ruling would then set an enduring precedent like other such SCOTUS rulings. Of course, if it were deemed sufficiently important, then the ruling could be promoted into a constitutional amendment. According to my lights, recognizing this clarifying extension has become necessary as our country becomes more fractionated with large numbers of states in frequent disagreement with a federal government that often acts unconstitutionally.
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