Death of the Supremacy Clause

I think Americans have lost sight of the Supremacy Clause. In fact, I suspect most Americans (or at least most bureaucrats) don't even know what it is.

First, De Novo featured this interesting case where, on the face of it, it appears that certain school administrators at Lancaster High (Ohio) are wholly ignorant of 1st amendment issues in the context of students' right to free speech. You'll note that in the comments section I remarked how incredible this level of ignorance is, nationwide.

And then, along comes Principal George Charles at Bay City Central High School (Mich.). When freshman Timothy Gies wore clothing with the anarchy symbol on it to school, Principal Charles, who is apparently a pure administrator and in any case not a teacher of U.S. History, punished him. To defend himself, Timothy brought actual copies of the U.S. Supreme Court decision in Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969) and Barber v. Dearborn Schools, 286 F.Supp.2d 847 (E.D.Mich. 2003) to show Mr. Charles. Mr. Charles responded to these citations by telling Tim and his mother that school board policy takes precedence over the Constitution. As for another student at the same school also punished for similar reasons, an Assistant Vice Principal jokingly dared him to "give the ACLU my name." That's what both students did, and the school's punishments were subsequently reversed in an administrative appeal. (Read the ACLU Press Release about it here, by way of Object Permanence).

Without intending to sweep all career bureaucrats into this category, it amazes me how many of them live in such dark holes of ignorance. I'll never forget one bureaucrat I had to deal with who was in charge of the records department of a pyschological counseling organization. This woman honestly believed that her "company policy" took precedence over the orders of an Article III federal district court judge. Because she was being uncooperative, I had issued her a federal subpoena for my own clients' records. When the due date passed and my secretary's efforts to gain cooperation had all failed, I called her and the conversation went something like this:

UCL: Hello Ms. Bigbutt. I'm calling because you were required to provide us with these records by February 1 and it is now February 8 and I still don't have them. Is there a problem?

Ms. Bigbutt: Oh. Yes. Well, sorry but I can't give you these records. They're very private and confidential.

UCL: Yes, I understand that, but I am these patients' personal attorney and they have given you written authorization to release them to me and I have also served you with a federal subpoena.

Ms. Bigbutt: Well, I'm sorry but it is our company's policy not to release these kinds of records. They're extremely private.

UCL: [stunned silence] Ms. Bigbutt, do you understand what a federal subpoena is?

Ms. Bigbutt: Yes I do but I'm sorry, this is our company policy and I can't do anything about that.

UCL: [even longer stunned silence] Do you understand that the subpoena I sent you was issued under authority of the United States District Court?

Ms. Bigbutt: Look, I'm sorry but if you want these records then the patients will have to come and pick them up personally from me, and they can give them to you. But our company policy says that I cannot give them to you.

UCL: Ms. Bigbutt I understand that you spent a lot of time arguing with my secretary about this so I'm not going to argue with you for one more second. I have nothing to "discuss" with you, I just want you to understand exactly what I am going to do from this point forward so there are no misunderstandings. I will wait until tomorrow evening at exactly 5:00 p.m. If I don't have your records faxed or hand-delivered to me by that time, I will file a motion with the U.S. District Court asking the court to hold you in contempt for willfully refusing to obey a lawful subpoena. You will be forced to explain your actions directly to the court, and if you fail or refuse to appear before the court, I will ask for a federal warrant to be issued for your arrest and a U.S. Marshall will show up at your office to physically take you before the court to answer for yourself. So, to avoid all this, I really hope to see those records by 5 tomorrow.

Ms. Bigbutt: [stunned into silence, for once] Ohhh! Ahh! You are the rudest lawyer I've ever spoken to! You are so incredibly rude! How rude!

UCL: Thank you. Goodbye. [click]

(Records were hand-delivered in the morning and Article III survived intact.)