Federal Failure and Arizona

By Anthony W. Hager

Now that the federal government has formally filed suit to block Arizona's efforts to identify illegal aliens, the emotional rhetoric that has controlled the debate should take a backseat to reality. The Justice Department claims that Arizona has usurped the federal government's authority over immigration and naturalization (U.S. Const., Art. I, Sect. 8) and the Constitution's supremacy clause (Art. VI).

Odd how Washington becomes concerned with the constitutional delegation of authority only when federal power is challenged. There was little interest in the Constitution's assigned powers when Congress passed the health care bill. Constitutional authority isn't mentioned when card check is debated, or when Social Security and Medicare are discussed. However, despite its disdain for the document by which it is supposed to abide, the federal government seems to be on solid constitutional footing this time.

Congress has the authority to "establish an uniform rule of naturalization." The reason the Founders granted this power to Congress was to avoid conflicts and wars with neighboring nations. John Jay argued in Federalist No. 3 that border states, the ones most likely to be affected by immigration and border disputes, were inclined to act "under the impulse of sudden irritation." Therefore, national control of the international borders provided a greater opportunity for sustained peace.

Alexander Hamilton affirms Jay's testimony in Federalist No. 32. Hamilton contends, quite logically, that if each state enacts individual naturalization laws, then the "uniform rule" demanded in Article I, Section 8 is impossible. Thus, legislative authority over the borders, immigration, and naturalization belongs to the United States government. This power, being granted to the national government, is naturally denied to the states.

The United States is apparently correct in claiming authority over immigration law. Yet there are a few flies in the ointment that lend credence to Arizona's position. Foremost, Arizona hasn't enacted a law that regulates immigration or the naturalization process. What Arizona's legislature has done is authorize state and local agents to address federal crimes. This isn't unprecedented.

Sixty-three state and local jurisdictions, and seven in Arizona alone, currently deal with illegal immigrants via Immigration and Customs Enforcement's 287g program. State and local authorities are instrumental in identifying illegal aliens for a variety of reasons, not the least of which is proximity. Local police are likely to be the first officers at the scene of any violation. However, 287g is based upon ICE, a federal agency, authorizing local departments to enforce federal law. If 287g were the sole example of local authorities addressing federal crimes, the case might be closed. It's not. Rhode Island state police have been enforcing immigration law on the weight of Gov. Donald Carcieri's executive order since 2008.

For a national government to refuse to exercise an authority -- in this case, enforcing the borders -- amounts to abandonment. Nature abhors such a vacuum, so the United States' abdication of naturalization enforcement must be filled. Enter Arizona's immigration enforcement law. In fact, Arizona's action is in keeping with our nation's founding principles.

Thomas Jefferson wrote in the Declaration of Independence that when a government no longer meets the needs of the governed, it is open to alteration. Arizona's reaction is therefore mild. Instead of abolishing federal authority, or supplanting federal statutes, the state has upheld both in enforcing the existing national law.

States aren't obligated to tie their hands or turn their heads when Washington ignores its assignments. If that were the case, what would happen if Washington ignored its duties in other areas? Reconsider Article I, Section 8, which not only establishes the federal government's naturalization powers, but also compels Congress to "provide for the common defense ... of the United States."

If a foreign power were to invade one of the several states, the national government would be constitutionally responsible for repelling the invaders. Suppose Washington simply refused to deploy the armed forces to the besieged state? Would that state be constitutionally bound to accept the occupying force, since its defense is an established federal duty? Only the most naïve pacifist would accept such a proposition.

A state so occupied would be well within its right, and obligated to its citizens, to act against the occupiers. The same holds true when the invading force comprises not military personal, but illegal aliens.

Washington's wink-and-nod approach to immigration is a losing position whether or not Arizona successfully defends its immigration enforcement statute. A federal victory will create a tsunami of resentment towards the national government. Congress will then be compelled -- this being an election year -- to reluctantly consider the best interests of the people and the states in regard to action on illegal aliens. An Arizona victory affirms a state's right to act in its own interest in areas not delegated to Congress, or in areas where Congress has neglected its constitutional charge.

Anthony W. Hager has authored more than two hundred published articles for various newspapers, periodicals and websites. He can be reached through his website, www.therightslant.com.

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