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GLENN: Let me just real quick, a minute and a half, let's do this. I know we disagree on Arizona. I happen to believe that they are only quoting federal law and the Constitution is not a suicide pact. If the government won't enforce their own laws and they are killing my state, I mean, I'm sorry but there's got to be some remedy here. There's got to be some way I can get out of the contract with the government or force them to enforce it themselves. There's got to be some remedy. And you disagree with that?
NAPOLITANO: Well, I disagree, I disagree because — and I don't know how much time we have.
GLENN: We have about a minute.
NAPOLITANO: In 1939 when the State of Pennsylvania was looking for Nazi sympathizers amongst aliens, it required all immigrants to register in the state capital and the Supreme Court said — and this is coming from a staunch defender of state sovereignty, Glenn, as are you, that when the Constitutional Convention came together and the states formed the union, one area they legitimately gave away to the central government for good and forever, unless they leave the union, is foreign relations and the ability to regulate aliens.
GLENN: Okay. So I've got to take a break and we'll come back and I want to ask you Part 2 of that question on Arizona. Hang on.
GLENN: All right. In front of the Supreme Court now in Washington D.C. is Judge Napolitano. I grabbed him on his cellphone and I'm sorry to make you, Judge, sorry to make you wait here and talk to us but are —
NAPOLITANO: Are you kidding, my friend? I've been looking forward to when I can appear on your radio show.
GLENN: I have to tell you, I am — you're a guy who really, really gets it and there are very few things that we disagree on.
NAPOLITANO: There are.
GLENN: But I so respect you and your opinion. The —
NAPOLITANO: You have put me in front of some of your largest audiences. That's the respect that I know you have for me and believe me, it's mutual.
GLENN: Well, thank you, sir. Judge, I want to ask you the question that I have not heard anybody ask. And when the president said this in the press conference about the boycott of California, of Arizona, and the president in the press conference said this.
PRESIDENT OBAMA: I've indicated that I don't approve of the Arizona law. I think it's the wrong approach. I understand the frustrations of the people of Arizona. And a lot of folks along the border that that border has not been entirely secured in a way that is both true to our traditions as a nation of law and as a nation of immigrants. I'm president of the United States. I don't endorse boycotts or not endorse boycotts. That's something that —
GLENN: Okay. Stop, stop. Do you see that? Did he endorse boycotts or not endorse boycotts. Isn't, isn't this what the commerce clause is really about? Shouldn't the president take a stand against state sponsored boycotts of each other?
NAPOLITANO: Yes. Yes, he absolutely should. You and I have made this argument together on the Glenn Beck program, on the Fox News Channel and we have made this argument in front of the huge audiences to which you have taken me with you around the country. When the states formed the federal government and the Constitution gave the power to the federal government to regulate interstate commerce, it meant then and if you are an originalist like justice Scalia as you and I are, it still means today to keep commerce regular, to assure individuals who want to move or trade over interstate lines that they can do so. So if an individual living in Los Angeles decides that he doesn't want to go to Phoenix on vacation because did he like this legislation in Arizona, that is his right and his privilege. But if the State of California or Orange County or the City of Los Angeles is preventing him from engaging in interstate commerce with Arizona, that is exactly the thing that the federal government came into existence to prevent from happening because the right to engage in interstate commerce is a personal, individual right that cannot be interfered with by the federal government and cannot be restrained by the states.
STU: So essentially, you know, a government couldn't — like, for example, Los Angeles saying that they are not going to do business with Arizona, doesn't that mean, though, that that would be okay under that definition because it's all right for them to say — for them to make their own decision on it. As long as the state isn't barring someone from doing business with Arizona that is
NAPOLITANO: Correct. Correct. Could the City of Los Angeles say that we as a city will not do business with Phoenix? Yes. Could the City of Los Angeles say someone subject to our jurisdiction, a person living in Brentwood, can't go to Phoenix? Of course they can't do that. And if they attempted to do it, then under the commerce clause and the cases interpreting it, it's the affirmative obligation of the federal government to stop the city, in this case the state, from interfering.
GLENN: But doesn't this violate, for the president to say, "But I don't take a stand for or against," doesn't that violate the spirit of what the president and what the federal government should be doing?
NAPOLITANO: Absolutely. And I'm saying this as someone who — well, I don't know exactly why he's opposed to it, but shares his general observation that there are constitutional problems with the Arizona statute. Put that aside. When he took an oath to uphold the Constitution, he took an oath to uphold all of it, whether it happens to be convenient to his political goals or inconvenient to his political goals. And the commerce clause was written to assure that the federal government would guarantee that there would be the freeflow of commerce between the states. That means the movement of human beings and the movement of goods unimpeded by a jealous state that doesn't want business to come from or go to another state, for whatever reason. In the old days it was tariffs. Now it's politics. It doesn't matter the reason. The job of the federal government is to keep the channels of interstate commerce open and freely flowing so that anybody who wants to engage in those channels can do so.
GLENN: Okay. Judge, best of luck. Thank you so much.
NAPOLITANO: Good to see you, my friend, thanks for having me.
GLENN: You bet. Bye bye. Judge Andrew Napolitano.