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I have heard a lot of people talk about the immigration law that Arizona recently passed.  Most people seem to want to just have their opinion that it is good or band and divide the country with the argument over it.  To a point I am doing that here, however I am countering the largest argument against it.  Not because I believe in the law, nor am I saying I disbelieve in it.  I am making this argument merely because of how I view the argument itself.

I think that this leaves little room for people to attack the law, which means that it is likely to force the argument to be an attack against individuals (“you’re racist”) and not anything about the subject matter itself.  I consider it a win when someone does that, ad hominem attacks are for idiots and those who cannot otherwise attack the logic of an argument.  I also have not yet heard anyone make this argument in support of the AZ immigration law.

I also think that people who assume that all illegal immigrants are of a particular ethnicity, or do not belong to a particular ethnicity are themselves racist.  This is not about lawful immigration, it is about unlawful – as in illegal – immigration/migration.  Not all people who enter the country illegally are immigrating, some are just here temporarily.The federal government claims that it has the right to regulate narcotics.  The DEA enforces the federal drug laws on a primary basis.  Some states have drug laws and state, county and city police enforce those laws.  Many states use the DEA schedule lists for their own legislation, as opposed to drafting their own lists, this way if the DEA says its bad, its automatically illegal on the state level.

Very few are saying that the local officers should be banned from enforcing the drug laws, or the other laws that have a federal equivalent.  Janet Reno, under Clinton, ran “project exile” as a test basis (Bush took it national and for all crimes).  Project exile is to determine which laws, federal or state, have the worst punishment and prosecute there.  This implicitly requires that there be both a federal and state law that covers the same action.

When it comes to immigration however the argument comes out that only the federal government should be able to enforce immigration laws, and the states should never be allowed to.

The reason that a law had to be written should also be explained at the same time.  This is because SCOTUS has said that the federal government cannot force states to enforce a federal law.  Basically, due to the constitution and the SCOTUS rulings interpreting it, state law enforcement cant enforce federal laws, they have to have their own laws to enforce them.  Should a local law enforcement officer not enforce a federal law there is nothing that can be done to them.  This law makes it a requirement that local law enforcement actually enforce the law that already exists – and nothing else.

If I leave things here, I think that the issue will just boil down into name calling and no opinion will change.  There are some other issues that are misguided and often involve a lack of understanding of the constitution, or an agreement that the constitution says whatever SCOTUS says, unless of course they rule in a way that those people disagree with.

The claim that the federal government is the sole person who has jurisdiction on immigration is through a couple of issues.  First there is the supremacy clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Nowhere in here does it state that only the federal government can enforce a set of laws.  This merely states that if there is a treaty, something in the constitution itself, or a federal law then that is superior to any other law.  It does not require the federal government to enforce their version, they can defer to local authorities if they choose.  It also does not forbid local authorities from enacting a similar or even identical law.  In the case of Arizona they did not make illegal (re)entry into the US a crime, they only made a law that makes it a misdemeanor in the state if you violate the federal statute – its the same statute, if the feds change the law the AZ enforcement automagically changes as well.  If the feds give someone asylum or legal status, they cannot be in violation of the AZ law.

Article I Section 8 Clause 4 reads

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Immigration is not actually mentioned in the constitution itself.  The Supreme Court has decided that it is implicit in naturalization since congress cannot reasonably make the rules for how to become a citizen if they cannot also make the rules for how people can enter the country.  See Hampton v. Mow Sun Wong, 426 U.S. 88 [1976] and others.

I personally disagree with this, and think the 10th amendment puts immigration as a right of the states, however no one listens to me and everyone seems to want some exception to the constitution for their favorite interpretation.

The reason I disagree is naturalization is separate  from immigration.  Some countries have what is known as “economic citizenship” where you are naturalized not because you spent time in the country, but because you invested in a business in that country.  Other countries allow for naturalization merely based on ethnic/religious affiliation.  Israel comes to mind in this regard.  Immigration is not a requirement in these instances, and while congress did not opt to allow for this type of citizenship they do have some weird rules relating to where you are born.

You can be born to US citizen parents under certain conditions and require naturalization to become a US citizen.  The laws change so any court cite on this would only be relevant to a specific time period.  SCOTUS has ruled on this issue specifically at various times.  Again, you get naturalized without requiring residency.

Immigration is clearly separate, and by not including it in Clause 4, it falls to the 10th amendment.

This causes a fallback to the supremacy clause saying that US laws are superior to state laws.  This logic is flawed, the supremacy clause does not state that only one can pass the law, instead it means that if the feds want to take over a case they can.  Nothing presented so far actually prevents Arizona from enforcing an immigration law that is equal to the federal one.  If anything a  valid argument based on the 10th amendment means that only Arizona (and any other state) and not the federal government has the ability to pass immigration laws.

In this way it would be like the member states to the European Union.  We too are a union (name of the “north” during the civil war) of member states, and each state is sovereign with only a small bit of power given to the federal government and only for what was enumerated in the constitution.  If you do not believe this read history, read what was said during the drafting of the bill of rights, read up on the 10th amendment.

I know this view is unpopular, but without playing games interpreting the constitution there is not another way to view it.  If people do not like this they should read up on ratification and change the constitution rather than encourage it be ignored when its easier than actually changing it.

Ignoring the constitution is a slippery slope since things like the 4th amendment protect you from unreasonable search and seizure, the 5th amendment means you cannot be forced (tortured) to testify against yourself.  The 6th amendment grants you due process rights ensuring that you can get in front of a judge and not be held indefinitely without trial, proof of cause, or anything else.

Some will argue that the flippant attitude towards the constitution is leading to this already.  Suspected US citizens are not given miranda rights (this is not advising them of the rights, but rather the rights themselves – right to a lawyer & right to remain silent).  People have their emails read without warrants, phone calls listened to, and more.