The imperial presidency revisited

Beyond being logically ridiculous — if a state law is unconstitutional because it’s out of sync with the federal government’s current priorities, does it become constitutional again when federal policy changes? — this argument is “an astounding assertion of federal executive power,” wrote Justice Samuel Alito in a concurrence. The Obama Justice Department is suggesting that “a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy.”