Tag Archives: Arizona

Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered. Continue reading

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Chamber of Commerce v. Whiting before the Supremes

Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:

As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.

The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).

As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.

JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.

The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.

Overall, prognosticators seem to think that the Justices leaned towards Arizona, predicting a 5-3 win for the state. Justice Kagan was not on the bench for the arguments.

Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory.  That is almost a classic example of doing something inconsistent with the federal requirement.”

Apropos: at least one of the Justices  did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)

Immigration Debate: Federal or state purview?

The Constitution in Peril
Image by Renegade98 via Flickr

Recently, the local Deseret News has seen debate on its opinion page, and carried over in the Facebook-sphere, on the immigration issue, especially as it relates to whether immigration policy is the purview of states or the federal government, and in many respects, it returns to Constitutional interpretation by the political right (though I am not clear that it falls on party lines).  Two opinions in particular have debate it, and because one (“Immigration a matter for the federal government, which hasn’t delivered,” August 8, 2010) is in direct response to the other (“Border security not federal purview,” August 3, 2010), I’ve posted them below.

It’s an interesting discussion, and I believe it reflects, in many ways, a growing disenchantment with the expanding reach of the federal government in to the lives of American citizens.  However, the views expressed of the authors are their own, and I present them only as food for thought and consideration.  I do not blame the growth of the federal government on either party alone; indeed, much of what the Obama Administration has been able to accomplish has only been possible because of what the Bush Administration did during its eight year tenure.

The first opinion below is by Connor Boyack (he is found on Twitter as @cboyack), a blogger, communications coordinator for the Utah County Campaign for Liberty, “a 20-something web designerpolitical economist, and budding philanthropist.”

In the wake of Arizona’s immigration law and “the list” of 1,300 alleged illegal immigrants, people in Utah and around the country are debating the ever-present issue of immigration at a fever pitch. For all the resulting discourse, however, it seems that nearly everybody has assumed that federal immigration law is proper.

This view is mistaken, although understandable. More than a century of precedent has led Americans to believe that the power to regulate and restrict immigration is a federal one. Time, however, does not confer authority; if an individual health care mandate is unconstitutional today, yet still implemented, the passage of 100 years does not make it right.

It is an interesting exercise to ask supporters of federal immigration law where the government derives its authority on this issue. The varying responses given are as numerous as those offered by the U.S. Supreme Court over the years. One would think that if such a power existed, we could at least agree on what text in the Constitution applies.

A common citation of constitutional authority is Congress’ power to “establish a uniform rule of naturalization,” though both a colonial-era definition of the word naturalization, as well as a litany of quotes from framers of the document in question, clarify that naturalization has only to do with the specific process that makes an alien a citizen. The stretching of naturalization to somehow encompass an individual’s travel through and residence within the United States is without constitutional support.?

Some also point to Congress’ power to repel invasions, arguing that the flood of immigrants crossing the border invade our country, use our resources, burden our social welfare programs and bring with them gang violence and drug warfare. However, this supposed invasion is no orchestrated campaign by a distinct group; Juan’s peaceful and individual migration to America cannot reasonably be classified as being part of some coordinated effort to invade America.

James Madison argued in Federalist 43, in the Virginia Ratifying Convention, and in his Report of 1800 that the power to repel invasions only was meant for protection when a state was attacked by another state, or when the country was being subjected to a coordinated military strike. While some gang activity may possibly apply here, it is patently absurd to classify all migration as a legitimate and actual invasion.

Historically, the commerce clause was used to justify federal immigration law, but this dealt mainly with slavery or state-based migration taxes, and few would try to so twist this clause as to apply to the modern migration of individuals across our borders.

The last justification often used is a vague and boundless reference to the country’s sovereignty, where it is argued that the country must “secure its borders” as a matter of “national security” and that the power to do so comes as an inherent right of being a sovereign nation. Not only are the states the sovereign entities in our federal republic, but the federal government cannot legitimately act unless it has been delegated the power to do so by the states under the U.S. Constitution.

Federal immigration laws have no constitutional authority, and unless an amendment to the Constitution is ratified by the states to delegate that power, the states should retake and affirm their power to manage immigration within their borders. Given that “illegal immigrants” have violated federal immigration laws, which exist without proper authority, the proper action for those who support and uphold the Constitution is to advocate amnesty for those whose only crime is noncompliance with these illegitimate laws.

The response to Connor Boyack’s opinion piece was published in the same publication, the Deseret News, on Sunday, August 8, 2010.  It was co-written by Ben Lusty, an attorney in private practice in Salt Lake City, Utah, and Daniel Burton (he is found on Twitter as @publiusdb), an attorney in Utah and the Chair of the Utah Young Republicans.

We recently read the “My View” by Connor Boyack (“Border security not federal purview,” Aug. 2) with great interest, and feel it necessary to respond to Mr. Boyack’s extreme views. Were we to follow his logic, we would find our country crossed and conflicted with 50 separate immigration policies, creating uncertainty and jeopardizing freedom of movement. The federal government, despite its many faults and heretofore failure to act in this arena, is best situated to secure our borders and establish uniform immigration laws. We, too, are frustrated with the federal government’s immigration policy failures, and do not object to a state’s right to enforce existing federal immigration law. However, upending the constitutional infrastructure of the nation is no solution.

Mr. Boyack’s major flaw is his narrow-minded reading of the Constitution, especially Article I, Section 8, which includes a full grant of authority to Congress to establish rules of naturalization. Mr. Boyack argues, without citing evidence, that the framers understood this grant of federal authority absurdly narrowly and meant it only to empower Congress to grant citizenship to aliens, not as power to establish comprehensive immigration law.

Hundreds of years of Supreme Court precedent refute Mr. Boyack, but he blithely dismisses the constitutional authority of the judiciary with the aphorism that a hundred years of wrong precedent is still wrong. But Mr. Boyack’s way of thinking is illogical. How can Congress logically exercise its undisputed plenary power over naturalization if it lacks the authority to admit or exclude aliens from the country in the first place? What if Congress wants to grant citizenship to an individual that the state of California refuses to admit to the nation? We doubt the Founders were so shortsighted as to create such a painfully foreseeable crisis.

Further, Mr. Boyack’s analysis ignores other important constitutional language. For example, he largely ignores the commerce clause. Congress has authority to regulate interstate and international commerce, and there is no doubt that immigration affects national commerce. Moreover, Mr. Boyack completely ignores Article II of the Constitution. Article II grants the executive branch broad power to implement foreign and defense policy. Immigration affects both, but under Mr. Boyack’s vision, the states would seize this authority from the federal government.

More tellingly, Mr. Boyack has not accounted for Article IV, which provides that a properly ratified treaty is the supreme law of the land. States cannot have paramount authority to exercise control over immigration if the federal government can likewise enact a treaty with a foreign nation affecting immigration policy.

Mr. Boyack, wearing a guise of “originalism,” simply interprets away the plain meaning and clear intent of constitutional language, attempting to substitute the words of a few founders as definitive of the collective work of the founding generation. What Mr. Boyack posits is a radical interpretation — that states (all 50 of them) have the power to set their own immigration policy.

Despite our disagreement with Mr. Boyack’s interpretation of the Constitution, we agree with the majority of the population that the federal government has not effectively addressed immigration. Most people are not sensitive to the fine distinctions between federal and state power in our Constitution, but they do care about results, which the federal government has not delivered. We suspect that many advocates for enhancing the power of states at the expense of the federal government are more concerned with the failure of federal policy generally than with Constitutional jurisprudence.

The federal government is institutionally better situated than the states to deal with immigration. The question that Mr. Boyack fails to answer is whether we want 50 immigration policies. Therefore, based on reasons of pragmatism, law, and politics — the same reasons that the Founders came together at Philadelphia to “form a more perfect union,” we refute Mr. Boyack’s myopic view of state authority. Immigration policy is, by and in large, the purview of the federal government. What we do to bring about the changes in the federal government to resolve our immigration policy problems is another discussion altogether.

Getting educated on immigration

The United States

Image via Wikipedia

Immigration has become a hot topic.  A hot topic at dinner, a hot topic on the news and in the opinion pages, a hot topic at the water cooler, and a hot topic for the voting public.  Bloggers and talking heads are having a hay-day with it, and there’s no shortage of opinions out there, nor is there any shortage of the variety of opinions.

As this tumult of words grows, and I have no doubt that it will increase, at least up until the November elections if not beyond then, I have begun to wonder how much information is rooted in the opinions.  A good friend of mine is fond of pointing out that we live in a republic precisely because there just isn’t enough time for all of us to get all the information necessary for a functioning democracy.  Perhaps immigration has become an example of that shortage of information, or at least shortage of informed voters, a shortage that makes informed and effective decision-making difficult.  Elected officials, the policy makers, are caught between pandering to their electorates and creating good policy.  Electorates are manipulated by talk show demagogues or a complete gap in information altogether.  And in the middle are the immigrants and their employers–here because they want a better life.

This point was driven home to me last night when a speaker at an event I was attending–ostensibly, a lobbyist for a company that never ceases to raise the ire of the press in the town where I live–stated that the best way to win an argument, or a policy discussion, is with education. When people have accurate facts, they tend to make better choices.

With this in mind, I’ve started to gather some of the relevant facts about immigration so that I can make an informed decision, or at least so that I can inform policy makers with accurate information. Here are a few of the things I’ve learned in recent days:

  • although immigration will not substantially arrest the aging of the American population, openness to immigration means that the United States will face fewer of the economic and social pressures that will mount as a growing number of Americans retire and are supported by a smaller working-age population
  • over the years, immigration has brought the United States an inordinate level of the world’s talent and education as a higher standard of living and economic opportunity has brought skilled individuals here
  • targeted and focused border and immigration measures can make the US less vulnerable to another major terrorist attack; however, if these same measures disrupt the flow of talented immigrants to the US or significantly disrupt legitimate cross-border travel or commerce, America’s economic and military strength will be weakened.
  • immigrants provide a valuable language and cultural recruiting pool important to 21st century conflicts and in short supply among Americans.
  • one of the most successful forms of US public diplomacy to project a positive image abroad has been to allow non-Americans to travel to the United States
  • how we handle immigration policy speaks to America’s core values.  We have a right to determine who will live here and to enforce those rules, but those who violate them must be treated with respect and decency and fairness
  • Serious criminals, even if here legally but not a citizen, can and should be deported.  This should include for felony level crimes, and should discriminate from more minor offenses and allow for flexibility for extenuating circumstance
  • economic development in developing countries is the best way to discourage immigration, and one of the best ways to encourage development is through open immigration policies in the US
  • there is little evidence that immigrants come to America to go on welfare, rather than to work, flee persecution or join family members in the United States. [CATO]
  • With the exception of refugees, eligibility for programs usually requires immigrants to have been in the United States for 5 years or more in a lawful immigrant status. [CATO]
  • If immigrants have been seeking states with lenient benefit eligibility, then they’re not doing a good job. Author and Wall Street Journaleditorial writer Jason Riley notes many states with recent large increases in their immigrant populations, such as Arkansas, North Carolina, South Carolina, Utah and Georgia, are primarily states with low and below average social spending. [CATO]
  • Congress enacted a complete ban on supplemental security income for non-citizens who enter the United States after August 22, 1996.
  • Immigrant men, ages 18 to 64, are more likely to work than native-born Americans. According to 2004 Census data analyzed by the Pew Hispanic Center, the labor force participation rate for legal immigrant males in that age group is 86 percent, compared to 83 percent for native-born males. The rate is even higher-92 percent-for illegal immigrant males. Immigrant women are more likely to be married and have children, according to Census data, and this leads to a lower labor force participation rate-64 percent for legal immigrant women vs. 73 percent for native-born women.

And that’s just a few.  Are there any others you would like to add to it?  I’m sure I will add more in the coming weeks and months.

How would SCOTUS rule on S1070?

Doing the Job the Feds Won't Do!
Image by Sundials by Carmichael via Flickr

Historically, conservative justices, with their stricter interpretation of the Constitution, have viewed immigration policy as the exclusive purview of the federal government. That means both ideological factions on the court may be hostile to Arizona’s defense of S1070.

From AZ Capitol Times

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