Feds Usurp State Immigration Authority


by Jim Delaney, blogging at Opinerlog

The Bill of Rights originally contained 12 amendments, of which two were not passed at the time

(Oct. 11, 2011) — Being an ‘ole immigration counselor, and having perfunctorily accepted the general notion that the feds are, in fact, pre-eminent in the area of immigration, I decided to research the matter for myself. Lesson learned yet again: ALWAYS question the feds ANY TIME they claim primacy on ANY issue. Why? Chances are they’ve overstepped their Article 1, Section 8 enumerated powers. And, indeed, on the matter of immigration law, they have grossly violated the constitution with impunity, proving once again that all the feds require in order to expand their powers is a submissive State and an uninformed citizenry. But, a ray of hope: on the matter of immigration, and illegal aliens specifically, Alabama is successfully reasserting its rightful constitutional authority over immigration. The lingering concern for me, of course, is whether or not Alabama will eventually back down if the imperious and overreaching federal judicial system once again thwarts the Constitution by trampling on State sovereignty.

On September 28th, US District Judge Sharon Blackburn upheld most of Alabama’s recently enacted immigration law, arguably the toughest immigration law passed by any State to date. Horror of horrors!!! And, of course, the bleeding hearts and open border simpletons among us are in an uproar! Oh, the indignity!!!

Essentially, Blackburn ruled that Alabama’s law enforcement officers may check the immigration status of those they suspect may be illegal entrants. Shocking!!! Unbridled tyranny!!! Fascism!!!

The ruling also upholds the law’s requirement that all businesses use E-Verify, a national database operated by the US Citizenship & Immigration Services that allows employers to check potential employees’ Social Security numbers to determine if they are work-authorized. Sedition!!! Shameless racism!!!

Also upheld is the requirement that all school enrollees must present a birth certificate within 30 days of enrollment, this to determine the legal status of their parents. (Note: the law does not prohibit an illegal alien’s attendance.) Oh, the humanity!!! Have we no heart???

On the flipside, the Judge blocked the law’s 1) prohibition against an illegal’s applying for a job, 2) imposition of civil action against employers who knowingly hire illegals, 3) criminalizing the harboring and transportation of illegals, and 4) prohibiting businesses from claiming deductions on wages paid to illegals. A confident and appropriately assertive Alabama plans to appeal these negative portions of the ruling straightaway. My sense is that Governor  Bentley has no intention of continuing to obediently yield Alabama sovereignty to an overweaning federal government. Not this time anyway–I hope.

My research into this subject quickly and manifestly shows that federal primacy relates only to matters of naturalization, but that immigration still remains very much a State power.

We must remember that the Ninth and Tenth Amendments to the Constitution clearly reserve those powers and rights not specifically granted by the Constitution to the federal government to the States or to the people. Simply put, if a power is not specifically granted to the federal government (Art 1 Sec 8), that power falls within the sole purview of the States. The Ninth was intended to preserve all rights existing under state laws as of 1791. The intention of the Tenth was to prevent future federal encroachments upon the states via its exercise of non-delegated powers.

As the federalistblog points out, “because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congrss no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.” In fact, before and after the 14th Amendment, most States actually had their own immigration commissioners to supervise state immigration activities as well as state immigration representatives in various foreign countries to encourage legal entries into their states of specially qualified persons. But, by slow erosion of the Constitution over the years, the feds have pretty much usurped nearly all authority over immigration matters. Willfully negligent or otherwise financially dependent, aka bought-off, States have, by their silence over the years, stupidly and irresponsibly consented to this–and countless other–federal encroachments.

Rep. John Bingham, co-author of the 14th Amendment, argued that while States may not deny entry of US Citizens, States may forbid entry of aliens and to deny their right to acquire property in the States.

Surely, ‘ole John must have been a crackpot. Huh?

Justice Taney argued Congress has no right to authorize the introduction of aliens without the express consent of the States involved. He also cited Holmes v Jennision, Groves v Slaughter, and Prigg v Pennsylvania to demonstrate that the States alone had the power to expel and exclude. Another Constitution-first troublemaker!!!

In a note to Congress, Pres. Grant asserted that the federal government was prohibited from interfering with immigration matters and that “responsibility over immigration can only belong with the States since this is where the Constitution kept the power.” And all this time I thought Grant was a nice guy!!!

The challenge for the feds over the years has been to prove that immigration somehow directly relates to  foreign affairs, thus incident to its exercise of delegated powers under Art 1 Sec 8. However, because the federal government has been unable to constitutionally or cogently demonstrate that relationship, it has simply usurped state authority. And, as said, up to now States have routinely submitted.

While Art 1 Sec 8 specifically grants Congress the power “to establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States”, nowhere in the Constitution is Congress granted authority over matters related to immigration. NOWHERE!!! (Note: by definition, “immigration” relates to the movement of people while “uniform rules of naturalization” relate solely to citizenship requirements.) Again, the Constitution’s enumerated federal powers say absolutely nothing about immigration; thus, if immigration/asylum authority is not expressly granted to the federal government, it is, therefore, expressly withheld from it. (Note: the only allusion to immigration, per se, is Art 1 Sec 9 which prohibits the “migration and importation” of slaves after 1808, a deal which the States agreed to as a condition of ratification.) Fullstop.

In a nutshell, for the feds to rightly claim constitutional primacy in immigration–or in any other matter–two conditions must be met: 1) that power must be expressly delegated to the feds, or be “incidental to a delegated power granted to Congress”,  and 2) that power must be expressly withheld from the States. On this subject, the Constitution very clearly places primacy with the States. But, constitutional  primacy is utterly irrelevant if the several States are inclined to ignore or otherwise duck that primacy.

None other than Thomas Jefferson unequivocally stated that States retained jurisdiction and authority over immigration matters: “Alien friends {as opposed to enemy aliens] are under the jurisdiction and protection of the laws of the state within they are; that power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens…”

James Madison succinctly explained that “the powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State govenrments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce with which the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The short of it is this: since the Articles of Confederation, the sovereign States–not the feds–have had exclusive authority over immigration matters, and that authority was carried over into the Constitution itself. Clearly, the culprits here are the States themselves who have cavalierly and gratuitously surrendered their sovereignty. Well, up until now that is.

However, to checkmate further federal violations of the Constitution and to reverse the litany of violations already committed, I urge all readers to do their own research on this and a whole host of other subjects. You may be surprised and very much appalled by the extent of federal overreach perpetrated on the Republic over the years. In short, take nothing for granted. Accept nothing at face value. Challenge long-held assumptions, court rulings and popularly held notions about the Constitution which simply don’t square with the Constitution. Don’t expect to be properly educated by the media’s agenda-driven talking heads and political elite, most of whom have already bought into the myth of federal supremacy in nearly all spheres of our lives. Don’t routinely acquiesce to your own State’s shortsighted failure to assert its constitutional authority.

Finally, on ALL constitutional matters scrupulously question with boldness and probity.  Leave no stone unturned. As the final arbiters of what is and what is not constitutional, it is incumbent upon We the People–not a gaggle of dopey self-serving attorneys–to be the experts. Research!!!! To determine what is and what is not constitutional, rely on the Founders, your own integrity, resourcefulness and objectivity, and most certainly NOT on the feds–and not even on your own lackadaisacal State authorities who, by their own negligence, have ceded so many of our rights to an increasingly unbridled national government.

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