Thursday, July 29, 2010

Why the Arizona Immigration Law is Unconstitutional.

Since it was passed, I have been against Arizona’s illegal immigration law. So, needless to say, I was pleased when a Federal Court ruled against the law one day prior to its going into effect. The Arizona law runs counter to my understanding of Federalism. To explain, let’s run several laws/rulings through the Tenth Amendment.

The text reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This states a principle in our system of government known as “enumerated powers.” Simply put, the responsibilities of the Federal government are listed in the Constitution, while all others are left to the several States. This jurisdictional line has often been blurred.

Take abortion. From a legal standpoint Roe v Wade (1973) was a terrible decision. Even liberal law professors (Lawrence Tribe of Harvard for example) admit this. If Roe v Wade is overturned, it will not make abortion illegal. It will simply return the issue to the states. At that point all fifty state legislatures will determine their own abortion laws.

In a similar vein, Congress passed the Defense of Marriage Act in 1996. This law states that no State shall be forced to recognize any same-sex union considered a marriage in another State. The law also defines marriage as being between one man and one woman. This law was recently ruled unconstitutional, and rightly so. The Federal government has no jurisdiction over the marriage laws and rites of any State.

What about drug enforcement? The same principle applies. The Federal government has no jurisdiction. The Drug Enforcement Agency (DEA) should not exist. The very idea of a “war on drugs” is laughable on its face, but from a legal standpoint, every State ought to be able to pass it’s own drug laws. If California wishes to legalize, regulate, and tax marijuana (or cocaine for that matter), it should be able to with no Federal intervention.

I understand that there are moral and societal arguments to be made in each of these cases, but purely from a jurisdictional and Constitutional point of view, the States have primary jurisdiction in each of these cases.

So why is the Arizona immigration law unconstitutional? In a nutshell, the law requires police officers who encounter persons engaged in a criminal offense (even a traffic stop) to inquire the suspect’s immigration status. Persons are thus required to keep proof of their status on them at all times.

Again, we have a jurisdictional problem. The Constitution grants the Federal government the power to admit persons into the United States, grant them residency status, and determine the process of naturalization for aliens. People are admitted to the United States, NOT Arizona, or Texas, or California, or New York. The States have no legal right to enforce any immigration law, and officers who represent a State or local municipality have no right to inquire the status of any person within their State. We cannot have a patchwork of fifty different standards of immigration enforcement. Arizona knew this when it signed up to enter the Union in 1912.

Ruling the Arizona law unconstitutional is a victory for our Federalist system of government.


Anonymous said...

So, by your argument, if the Feds passed a law requiring all law enforcement to verify the legal status of an individual accused of a misdemeanor or felony, that would be Consitutional from a jurisdictional standpoint?

Charles North said...

That's slightly more tricky. But ultimately, probably not. If they could simply "deputize" local law enforcement, they would have already done so rather than hire more Border Patrol agents.

I know that the Federal government has violated this jurisdictional argument more often than the States, but in the case of Arizona, the State is obviously wrong (at least it seems obvious to me).

Charles North said...

Oh, one more thing. I always thought of this law as silly because it represents symbolism over substance. Let's say an Arizona police officer pulls over a speeder, asks for their immigration status, and determines they are undocumented. What then? The police officer has no authority to hold them or deport them. All they can do is call in the Feds. And the Feds will not cooperate with local officials in Arizona. So what's the point of the law, really?

Anonymous said...

So (now that I have read the ruling), the judge specifically blocked a couple of sections because they would add to Federal law, showed that several other sections were trumped by existing Federal law (then blocked those sections), and allowed the rest of the law (a large portion) to go into effect?

The good news is the bill can keep it's title "Support Our Law Enforcement and Safe Neighborhoods Act"

Very interesting read.

Charles North said...

I love how bills are named. Very interesting.

Constitutional Law is a dangerous maze of conflicting ideologies. I probably oversimplified things in this article, but at least it explains how I think.