More on ridiculous Morris and Napolitano call for PA grand jury investigation of Sestak offer

Blog ››› ››› ADAM SHAH

As my colleague Matt Gertz has noted, Fox News' Dick Morris and Andrew Napolitano have called on Pennsylvania Attorney General Tom Corbett to "convene a grand jury to get to the bottom of the scandal" involving the Obama administration's offer of a position to Rep. Joe Sestak (D-PA). The Obama administration has said that the offer consisted of asking Sestak if he'd be interested in an unpaid position on the Senior Executive Branch Advisory Board while retaining his seat in the House, not an offer of a paid position. Furthermore, a long, long list of legal experts have said this is much ado about nothing.

As Matt also noted, the Pennsylvania Attorney General, Tom Corbett, is the Republican Party nominee for Governor of Pennsylvania. So basically, Morris and Napolitano want him to investigate the opponent of someone who's on the GOP ticket with him.

But there is one more aspect of Morris' and Napolitano's call for a state-level investigation of the matter that requires discussion. Morris' and Napolitano's call would seem to violate basic precepts of federalism. After all, Morris and Napolitano are arguing for a state prosecutor to investigate discussions on behalf of the federal executive branch with a member of the federal legislative branch regarding an offer of a federal position that would avoid a primary for a federal Senate seat.

The Supreme Court has recognized the doctrine "Supremacy Clause immunity" in certain cases starting with the 1890 case of In re Neagle. The doctrine bars state prosecutors from pursuing prosecutions against a federal official discharging his or her federal duties. While the doctrine is not absolute and is relatively ill-defined, the doctrine would seem to be implicated in this case, which so completely involves federal matters. Yet Morris and Napolitano -- a former judge -- do not even mention Supremacy Clause Immunity in their column.

And it's not like the Supreme Court has been silent about state-level interference in federal operations. To go back to the Founders' principles, in the 1819 case of McCullough v. Maryland, the state of Maryland passed a law imposing a tax on a Maryland branch of the Second Bank of the United States. In the Supreme Court, the state argued that the federal government did not have the power to create a bank, and, even if it did have that power, Maryland retained the power to impose a tax on that bank. Chief Justice John Marshall held that Congress did have the power to create a national bank. He further held that Maryland did not have the power to tax the bank. Marshall wrote:

If we apply the principle for which the state of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states.

It certainly seem like a state prosecution in this area would lead us down the road toward making a state officials "capable of arresting all the measures of the government, and of prostrating it at the foot of the states."

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