Thursday, July 8, 2010

Federal Lawsuit Against Arizona's Immigration Law, The Supremacy Clause (Article VI, Section 2)

Week 10, July 8, 2010 - - -
The Constitution Is The Solution Constitution Study, Temecula, CA

Topic: Federal Lawsuit Against Arizona’s Immigration Law,
The Supremacy Clause (Article VI, Section 2)


Arizona’s Immigration Law, A Federal Lawsuit, and The Supremacy Clause

By Douglas V. Gibbs

The primary argument by the federal government in their lawsuit against Arizona will be Article VI, Section 2, also known as The Supremacy Clause, has been violated by the State of Arizona.

Every Thursday evening I lead a study group on the U.S. Constitution in Temecula, California at Faith Armory's classroom (27498 Enterprise Cir. W #2). For the first nine weeks we have bounced around quite a bit because the news of the week brings up a new constitutional topic. I planned to begin marching down Article I tonight, but right on schedule, the wide wide world of news has provided yet another topic for us to tackle.

This week, thanks to the federal lawsuit against Arizona and SB 1070 (a.k.a. Arizona's "controversial" immigration law), we will discuss The Supremacy Clause.

We are taught in school that federal law supersedes state law in all cases, and that federal courts are supreme over state courts. Therefore, if the federal government has a law on the books, and a state, or city, passes a law that contradicts that federal law, the federal government can override that local law, and strike it down as unconstitutional based on The Supremacy Clause.

An example of the federal government acting upon the above assumption is the medical marijuana laws in California. Though I do not agree with the legalization of marijuana, even for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.

California passed a law legalizing marijuana for medicinal purposes, but federal law has marijuana as being illegal in all applications. Therefore, using the authority of the federal government based on the Supremacy Clause, federal agents (or at least until recently) have been raiding and shutting down medical marijuana labs in California.

Deception always begins with a kernel of truth.

The Supremacy Clause applies to federal laws that are constitutionally authorized. No place in the Constitution is the federal government given the authority to dictate to states what they can legislate regarding drugs. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.

"Contrary" is a key word in the Article VI, Section 2, when applied to the federal lawsuit against Arizona.

Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that state laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.

Assuming, for just a moment, that the federal government has complete authority over immigration, Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law is similar to federal law. However, if Arizona was to follow the federal government's recommendation, and truly pass a law completely in line with federal law, Arizona would remove its text that disallows racial profiling because the federal law does not contain such protections.

The question, however, is if enforcing immigration laws is even a federal authority in the first place. After all, as we saw in Article I, Section 8, Clause 4, the federal government is only given the authority to "establish" the rule for "naturalization." One could reason that since the U.S. Constitution allows Congress authority over naturalization, it would be reasonable to assume the federal government could also determine how those same immigrants can come into our country in the first place. However, that is not what the Constitution says. It is very specific that it is up to the federal government to "establish" naturalization rules. It says nothing about applying those rules, or enforcing those rules.

Immigration is mentioned more specifically elsewhere in the U.S. Constitution, but the word "migration" is used instead. The word appears in Article I, Section 9, Clause 1. The clause reads: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The clause was designed to be a compromise so that the southern states would be willing to ratify the Constitution. There was a strong desire by many of the founders to abolish slavery at the onset, but for economic and agricultural reasons, many of the Founding Fathers realized that the new nation would not be able to immediately abolish slavery. Besides, to do so would be to lose the votes by the states from Maryland down to Georgia when it came to ratifying the Constitution. However, to take no action toward abolishing slavery would risk losing the votes of States pushing for the abolition of slavery. The Founding Fathers also had to take into consideration state sovereignty. To resolve their dilemma, they placed in the Constitution a mechanism that would allow Congress to prohibit the import of slaves from outside the country, but put a twenty year delay on it to reassure the southern states that the move was not immediate.

On January 1, 1808, the U.S. Congress passed a law prohibiting the import of slaves, keeping in line with Article I, Section 9, Clause 1.

However, notice that the word "migration" is also in that clause. Migration is another word for "immigration." Migration, like the importation of slaves, could not be prohibited by the Congress prior to 1808. This means immigration enforcement was completely up to the States. After 1808, Congress was given the authority to prohibit immigration, but once again, there is no language in the clause specifically regarding enforcement.

Current federal law does address the issue of illegal immigration quite succinctly.

U.S. Code TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324 addresses the harboring of illegal aliens (considering it a felony to conceal or shelter illegal aliens), the unlawful employment of aliens, document fraud, and civil penalties for an alien's failure to depart from the United States.

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1325 addresses improper entry by an illegal alien, considering illegal entry into the United States without inspection as being a misdemeanor. Repeated illegal entry is a felony.

As allowed by Article I, Section 9, Clause 1, the U.S. Code contains laws prohibiting illegal entry into the United States.

It would seem reasonable that the federal government should be tasked with the duty of enforcing their own laws, but once again, the Constitution does not indicate upon whom the duty of enforcement lies. Therefore, it is fair to assess that the duties of enforcement lies in the hands of each enforcement agency, from the federal level, all the way down to the municipal level.

Cities and States enforcing federal law is nothing new. For example, bank robbery is a federal crime, but the local police does not wait for a representative from a federal agency to appear before taking chase. It is perfectly acceptable for local authorities to enforce federal law in that instance.

So why should immigration enforcement be any different?

The immigration issue ultimately leads to the border, which is where the U.S. Constitution is more specific when it comes to the duties of the federal government.

Article IV, Section 4 reads: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion. . .

Invasion is defined as "forceful entry, to encroach or intrude on, violate; to overrun as if by invading; infest; to enter and permeate, especially harmfully."

Illegal immigration can easily be categorized as being an invasion. To stop the invasion, the federal government must seal the border. Therefore, the federal government is acting unconstitutionally when it does not protect the border from invasion by illegal aliens.

Though I do not believe case law is constitutional, I would also like to remind the leftists who love to rely on precedent law that there is also judicial precedents that support local enforcement of immigration laws. One example is a 9th Circuit Court case in 1983 (Gonzales v. City of Peoria) that determined "states and local police do have the authority to make immigration arrests and to assist the federal government in enforcing federal immigration laws."

The CRS Report for Congress - Enforcing Immigration Law: The Role of State and Local Law Enforcement dated March 11, 2004 ( also supports that local law enforcement may enforce immigration law, and in the reports findings, such authority exists also for purposes of national security. The report states: "Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR Act; H.R. 2671) and the Homeland Security Enhancement Act of 2003 (S. 1906) would enhance the role of state and local officials in the enforcement of immigration law...The legislative proposals that have been introduced, however, would appear to expand the role of state and local law enforcement agencies in the civil enforcement aspects of the INA."

It is the duty of the federal government to protect this nation from foreign invasion, and it is well within the rights of local agencies to enforce immigration laws within their jurisdiction. In relation to the Supremacy Clause, I do not believe it applies in this case, but even if it did, Arizona's law would not violate the Supremacy Clause because it does not run contrary to federal legislation that addresses immigration. In fact, federal law is much more stringent than Arizona's SB 1070, including the fact that federal law does not prohibit the use of racial profiling, while Arizona's law has specific text that not only prohibits racial profiling, but requires officers to provide evidence for their reasonable suspicion in order to ensure racial profiling was not used.

If by all legal standards, and by the language of U.S. Constitution, federal law, and Arizona's immigration law, the federal lawsuit against Arizona's immigration law has no validity, then one must ask, "Why has the federal government brought this lawsuit against Arizona?"

The answer is clear. The lawsuit is politically motivated, designed to garner sympathy for the federal government from the Hispanic community. In other words, the lawsuit is a feeble attempt to gather a few more voters in the face of the November elections, in which it looks like the Democrats will lose many seats.

An act of desperation at the expense of the law.

-- Political Pistachio Conservative News and Commentary


Special Thanks to:

Faith Armory
27498 Enterprise Circle West, #2
Temecula, California 92590

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