GLEN COVE, NY — Governor Jan Brewer has been criticized
by some for an encounter on the tarmac of an Arizona airport with President
Obama. She was photographed pointing — or wagging — a finger
at him. The truth is that she was doing her duty to a degree that is
rare among state governors today.
There is clearly bad blood between the two. The Obama
administration is attacking the constitutionality of Arizona’s attempt to control criminal and disorderly
illegal immigrants within its borders. Arizona, meanwhile, is joining with most
other states in attacking the constitutionality of the centerpiece of Obama’s
legislative achievements, the Stalinist scheme known as Obamacare.
The Arizona governor gave President Obama a written invitation to meet and to
visit the Arizona-Mexican border. He apparently walked away without accepting
it. Governor Brewer did her duty by wagging her finger at him and trying to correct
The criticism of Governor Brewer stems from a basic misunderstanding: Many people
wrongly think that the president actually has the power to give orders to state
governors. He does not. State governors are neither part of the federal government
nor subordinate to it. They derive their powers, rather, from the sovereign people
of their states.
Governor Brewer’s duty is thus to the people of Arizona. She is not a federal
civil servant who must defer to Obama. Indeed, she must hold him duty bound to
honor her state’s sovereignty — and correct him when he
The limitations that the federal government can legitimately put on a state governor
are few, and all authorized by express language in the United States Constitution.
They are few and include, but are not limited to, the following: State governors
cannot decree ex post facto punishments, decree corruption of blood, make paper
money, deprive people of a fair trial, restrict voting rights on the basis of
race, create a hereditary aristocracy, invalidate contracts, impose custom duties,
or segregate public facilities.
These restrictions, however, do not come from the federal
government, but from the sovereign people of the states. The people
of each state are “free
and independent by the grace of God,” as many official documents describe
the people of the State of New York. The sovereign people place great restrictions
on the power of the governor through the instrument of a state constitution.
Governors actually do not have much power — and what power they
do have truly belongs to the sovereign people of their states.
The president of the United States is entitled to a certain courtesy precedence
over a state governor. For example more guns are fired when saluting a president
than a governor. He has a higher diplomatic position than a governor. This is
because all fifty states have decided voluntarily, in adhering to the Constitution,
to exhibit the majesty and power of our nation as a union, not as individual
The courtesy precedence extended to the president should
not be dispositive of his rank in constitutional questions with respect
to the governors, however. Although the president is obviously the
Commander in Chief of the Armed Forces, he does not command the state
militias — the
governors do. Certainly, he has exclusive power with the Senate to
make treaties. He is also the chief executive and chief magistrate
of the executive department of the federal government.
At the same time, he is the servant of the people of the United States. This
is not a single conglomerate American people, but the people of each of the fifty
states. History clearly proves this. Rhode Island did not become subject to the
Constitution as soon as nine states ratified it, or as soon as the first Congress
and president were elected, or as soon as federal judges were appointed and confirmed
for the other twelve original states. It became a state only when it chose to
ratify the Constitution and enter into the compact with the other states.
Of all fifty states, not one was simply established and
imposed by the federal government. Each one entered the union by virtue
of its voluntary application. The first Congress proposed a Constitutional
amendment — one that was rapidly
adopted — which made it express and explicit that every power not specifically
delegated by the states to the federal government was “reserved to the
states, respectively, or the people.” This language is clear:
Sovereignty is in the people of the respective states, not of some
The president is elected by the Electoral College, which is chosen by state law
by the people of each state separately. He represents the compact between the
states. The governors, on the other hand, represent the people of their states.
The president has a duty to correct a governor only when he or she violates a
specifically delegated federal power. The governor, on the other hand, represents
the full general power of the people of the state and must oppose any transgression
against his or her people by a president illegitimately trying to expand federal
Jan Brewer has set the example. Let fifty hands wag fingers at the president
whenever he tries to usurp power from the people of the states.
The Confederate Lawyer column is copyright © 2012
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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