The Corner

Re: The Dems on Border Security

Dan, that’s quite a remarkable proposal. Let’s put aside the commonsense fact that the government will never be able to effect a meaningful reduction of the illegal immigrant population if it signals to illegals in any “comprehensive” proposal that, at the end of the rainbow (whether it is 12 months, two years, ten years, or whatever duration of stepped up enforcement), an effort will be made to legitimize the presence of those who remain here. I want to focus instead on the presumptuousness of telling states and municipalities that they are “prohibited from enacting their own rules and penalties relating to immigration” on the grounds that doing so would undermine federal policy.

The Constitution does not grant the federal government a monopoly on making immigration policy. Article I vests the Congress with the power “to establish a uniform Rule of Naturalization,” period. The Fourteenth Amendment bars the states from abridging the privileges or immunities of citizens of the United States. A “person” (whether an American citizen or not) must receive due process of law before his fundamental rights are infringed — but that just means the states have to afford the process that is due under the circumstances, not that they can be prohibited from acting. Similarly, no person may be denied equal protection of the law by a state, but that simply means that people who are similarly situated must receive equal treatment — it does not require states to treat dissimilar people or things as if they were the same, and though the Left is in denial on this, citizens and non-citizens are not the same.

In fact, if there is any potential equal protection violation, it is in the Reid/Schumer/Martinez proposal. The proposal purports to bar future state laws but leaves those already enacted unaffected. Why on earth should State A be forbidden to do something lawful that has already been done by State B?

In any event, there is no enumerated federal power in the Constitution to bar the states from enacting laws regarding the treatment of immigrants. The states may not pass their own naturalization rules, and they cannot (absent due process) deprive an immigrant (legal or not) of any right he may have under the Constitution — e.g., the Supreme Court has held that illegal aliens have Fourth Amendment protection, and that the warrant requirement is “incorporated” against the states, so a state could not lawfully permit police to search the homes of illegal aliens without first obtaining warrants. But apart from these clear no-nos, the federal government has no authority to tell states they cannot pass laws relating to immigration. Such authority was not delegated to the federal government by the Constitution, nor does the Constitution prohibit the states from all regulation of immigration, so under the Tenth Amendment, the states retain this power. And as Dan points out, state regulations will often have the effect of reinforcing and strengthening federal law, not undermining it.

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