The alternative
If it’s to be Cuccinelli instead as this czar, it’s not clear to me whether that’s good or bad compared to Kobach in that position.
Both are vicious idiots, but at least Kobach’s more extensive time in the spotlight has more thoroughly revealed him to be full-spectrum idiotic, idiotic in his chosen means to idiotic and vicious ends. This is a saving grace, that he wants evil ends but his incapacity blunts his ability to get there. He shares this saving grace with our demented president.
The biggest threat under our demented president is that some reasonably competent person whose ends are simpatico with Trump’s, will get his trust and support, circumventing the limitations of the harm a demented president can do without the assistance of a competent person. This danger seems especially threatening in the area of immigration, because the executive bureaucracy already in place in that area has proven itself amenable to the achievement of evil and vicious ends.
Cuccinelli, during his time in VA politics, was mostly a harmless buffoon, but he never got further than VA Atty Genl, and never had nearly as much chance as Kobach has had to show definitively competence vs incompetence.
What most concerns me is that Cuccinelli is a committed Tenther. Of course he was a solid Tenther at a time when Obama was president, so sure, that was probably just ideological opportunism. Now that we have an R president for whom he will be czar, the Tenther position on the relations between the states and the federal govt might seem positively embarrassing. After all, it’s going to be opposition from California and other states and localities that has the greatest potential to thwart the administration agenda.
My concern is that as someone who at least might have given some actual thought to the Constitution’s woefully outdated provisions for state-federal relations, Cuccinelli could go in for far more daring and dangerous hardball as a champion of federal power than as a fighter for state power. The 2nd and 10th Amendments, and Art IV, sec 4, were interpreted early in our history as making constitutional disputes between states and the federal govt not the proper subjects of judicial arbitration. No one appealed to the courts to decide on the constitutionality of the Alien and Sedition Acts, or the Tariff of Abominations, or secession. The idea of “political questions” that at least some disputes between the political branches should not be decided by the courts, seems to have extended to at least some disputes among the states and the federal govt. And in the absence of any means of settling such disputes in the courts, the accepted alternative was to settle them on the battlefield.
Adams couldn’t get legislation through Congress to mount an expedition against the states nullifying the Alien and Sedition Acts. Jackson was able to get a Force Bill to raise an army to invade South Carolina, but negotiations with that state got it to withdraw its nullification of the Tariff of Abominations before an actual invasion could be commenced. Lincoln, of course, both raised armies and actually invaded the Confederacy to vindicate the Supremacy Clause against the 2nd, 10th and Art IV, sec 4. In none of these conflicts did either side think that letting the courts decide the question was appropriate.
Should the federal govt under Cuccinelli claim that California and sanctuary cities are nullifying federal law and executive orders, we would of course expect that the issue would be appealed to and decided by the courts. But we now have a Federalist Society majority on the highest court. The Fed Soc is explicitly dedicated to frustrating the expectation that SCOTUS will not revert to the state of jurisprudence as it existed centuries ago. If SCOTUS chose to exercise jurisdictional modesty and bow out of any such dispute over the claim that California is nullifying federal law and executive orders as a political question, Trump would be left with no alternative for vindicating the Supremacy Clause apart from ordering federal troops to do the vindication.
Oh, sure, no rational conventional president would go for such a course of action. Unfortunately, we don’t have a president who is rational or bound much by convention. That leaves Cuccinelli as the decider. He’s probably a lightweight in all respects, someone who just used Tenther ideology as a convenience, has’t really thought much at all about the constitutional history of federal-state relations, so doesn’t see the potential for such a scheme now that he is on the federal side of the question, and so none of this will happen. But I do wish that we had more than probabilities to rely on, that we had repealed the 10th, and the 2nd, and Art IV, sec 4.