Ever Heard of Federalism?

By James R. Edwards, Jr. on May 20, 2010
Related Content: Arizona Law SB 1070 Topic Page

As President Obama, for the umpteenth time, trashes the common-sense Arizona immigration enforcement law, it's useful to consider once more the utter baselessness of such attacks.

Let's start with the grammar-school basics. The U.S. Constitution is an agreement among the several states in this nation. That is, states existed before the U.S. government did. They created the federal government. States agreed to cede just a portion of their sovereignty to the federally constituted government. The Constitution stands up a limited, republican government to address certain delineated, joint interests such as national defense and uniform weights and measures. Everything else remains each state's own prerogative.

The Tenth Amendment was added as part of the Bill of Rights to put suspenders on those already belted limitations on the federal government. That is, the Tenth Amendment is tantamount to an exclamation point on behalf of states' and individual rights.

James Madison explains in Federalist 39: The federal government's "jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." And in Federalist 45: "The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former."

Congress (not the judiciary or the executive branch, and certainly not the United Nations or some foreign or international body) holds plenary power over immigration per se. But that means Congress determines how many immigrants may be granted admission, the basis of immigrant selection for entry, the conditions of entry, the circumstances for deporting aliens who don't abide by those conditions, and the like.

States and localities rightly retain broad authority for handling the consequences of immigration. They may adopt state parallels to federal laws, as Arizona has done. They may do such things as restrict day labor practices, crack down on overcrowded single-family houses that have been effectively turned into apartment buildings for illegals, or require state and local agencies to verify the immigration status of applicants for public programs.

This kind of state action represents the exercise of a state's inherent authority — its "residuary and inviolable sovereignty over all other objects." (Slow learners and liberal lawyers, go back and start reading from the top.) The Bush administration's Justice Department helpfully issued a legal opinion that accurately recognizes this principle. Then-DOJ counsel Kris Kobach has explained state inherent authority here.

The Washington Post has highlighted how this DOJ opinion makes the current administration's misdirected opposition to Arizona’s law more difficult:

The 2002 opinion, known as the "inherent authority" memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. "This Office's 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken," says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

But post-American globalists like Obama and Supreme Court nominee Elena Kagan (reportedly, as Harvard Law School dean, Kagan scrapped constitutional law as a required course and replaced it with international law), as well as open-borders special interests, have focused on robbing states and localities of their right to self-government. One such effort is Obama’s and his administration's attack on Arizona and threat to challenge its new law on civil rights grounds. Another comes from Big Business lobbies like the U.S. Chamber of Commerce and the Society of Human Resource Management, which have instigated wholesale federal pre-emption of state authority where immigration is concerned. Section 102(b) of H.R. 2028, the New Employee Verification Act, would wipe out Arizona's and all other states' and localities' laws addressing the dark consequences of uncontrolled immigration.

The president's failure to understand this principle of federalism, or denial of its effect where foreign lawbreakers are concerned, is deplorable enough. For him to blast Arizona's law as "misdirected" and mischaracterize it as a racial profiling license is despicable. And it is simply dereliction of duty for Obama to countenance the self-interested meddling and hypocritical criticism of Arizona's immigration enforcement law by Mexico's president – while standing on U.S. soil! – rather than jump to the defense of an American state and our right of sovereignty and political independence.