Immigration Law and the Constitution


by Richard H. Frank

The debate continues to rage at both ends of the political spectrum concerning Arizona’s strict enforcement of immigration law.  The debate centers around any state possessing authority under the U.S. Constitution to pass a law which essentially enforces a Federal statute.

It is undisputed that under Article I, Section 8 of the Constitution, Congress is charged with and responsible “to establish uniform rules of naturalization.”  This enumeration was necessary to avoid the “several states” from enacting different laws affecting immigration and thus a uniform standard was and is necessary for the nation.  However, Article I, Section 8 makes no reference of responsibility for enforcement of those uniform rules.

Constitutional scholars contend that enforcement of uniform immigration rules is covered under Article IV, Section 4 of the Constitution which in part holds the Federal Government responsible to protect the states …”against invasion and domestic violence” upon application of the Legislature (Congress) or the Executive (President) when the Legislature cannot be convened.

Some political and Constitutional scholars interpret these sections of the Constitution as placing the responsibility for making the law and enforcing that law, on the Federal Government.

If this is in fact true, what happens when Congress and the President (the Federal Government) fails to act to enforce their own law when illegal aliens continue to break that law?

Arizona has decided to put the Federal Government to the test with regard to upholding its Constitutional duty by passing a state law which “mirrors Federal law” and assuming Arizona’s right of self-protection under provisions of the 10th Amendment to the Constitution.

Thus, the battle lines have been drawn!

Arizona claims injury from the Federal Government’s failure to protect their border with Mexico from illegal entry.

The Federal Government claims Arizona’s law is unconstitutional and makes the argument that the “Supremacy Clause,” Article VI, Section 2 of the Constitution holds Federal Law as the “supreme law of the land” over any state law to the contrary.  This argument fails in light of the fact that Arizona’s law says nothing contrary to the Federal statute, but places enforcement of that law in the province of local and state agencies in support of the INS and Homeland Security.  The Federal Government is faced with a dilemma caused by their own abdication of responsibility.  Arizona is not attempting to preempt the Federal Law, only to enforce it.

Past Congresses and Presidents all have egg on their faces and the political posturing and blustering begins anew as opposed to enforcing the existing law.

All the talk of Comprehensive Immigration Reform is meaningless unless we have the courage to enforce existing law and take control of our borders.  The cry for amnesty and charges of racism amount to nothing more than political posturing and noise created to pander to the minority vote or some other special interest group.

Even though our elected Representatives don’t get it, the People do understand the real solution to “illegal immigration,” and that is secure our borders and enforce the law!  We don’t need comprehensive immigration reform….just enforcement of our current laws.

Maybe it will take Texas, New Mexico and California to join Arizona in passing similar laws to wake up our massive Federal agencies and bureaucracies to do their jobs.  If not, the states will just have to resort to the next level of their power under our Constitution, and change those in the Federal Government.

No threat, just a promise from American citizens tired of Big Government trampling the Constitution!

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