Thursday, April 29, 2010

State Power vs. Federal

So, federal government, what do you do when a state goes over your head and passes some bill that intimately impacts their own economy, police, etc.? Why, of course, the only logical thing is to pass your own bill so you can reassert your superiority! Right?

Uh...maybe.

Now, I'll admit. I have some problems with the Arizona immigration law. What I don't have a problem with is a state taking care of problems in its own sphere of influence. For instance...state boundaries. That's their job. No harm, no foul.

Of course, in today's climate of federal-government-first-cuz-we're-awesome, it isn't hard to find beauties like this: "Mr. Obama said it was vital that Congress address the immigration issue, lest more state measures like the tough new law in Arizona sprout up."

....Oh no. Constitution forbid the states actually, like...exercise their power! That would be just way unconstitutional....

Oh. Wait. What's this you say? Tenth Amendment?
"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."

Huh. Fancy that.

Now, I don't see anything in the Constitution about immigration. Except this:
"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..."

And this in the powers of Congress:
"To establish an uniform Rule of Naturalization..."

Now in the first- the States decide who comes in, and when. Hence, Arizona's law is arguably not unconstitutional.

The second sets Congress' role in the immigration/nationalization process. Which is the last part. Congress decides the process whereby someone becomes an American citizen. Don't you love it how the Founders balanced everything out...and how everybody has to work together?

Sorry, Congress. Immigration is not Constitutionally your job.

Get over it.

16 comments:

Eman said...

Welcome back liberty. There are a few aspects you're missing here and my research has opened my eyes more to this situation and as always, I will share these findings with you and my friends here.

The first one that rears its head is the politics of this struggle. If a state, or nation, has laws it will not enforce for political reasons, it mocks both the law and politics, to say nothing of the cultural order. In terms of resources and in terms of political will, it has become abundantly clear that the federal government refuses to make the right decisions in terms of enforcing the law and making the critical reforms necessary to drive down illegal immigration. Sadly, efforts in Congress have been more about gaining political votes through an unnecessary amnesty than on honest and effective reforms. If gaining votes in November is your goal, you have neglected the country for your party’s gain. You have to ask yourself Liberty, who is to gain by non-enforcement of the federal laws? If you said democrats, you’d be right. If democrats, who own both houses and the White House, enforce the laws, they inflict blame and derision on themselves. In terms of resources and in terms of political will, it has become abundantly clear that the federal government refuses to make the right decisions in terms of enforcing the law and making the critical reforms necessary to drive down illegal immigration. Sadly, efforts in Congress have been more about gaining political votes through an unnecessary amnesty than on honest and effective reforms.

But all the while, America suffers. For federal officials, including the president, to accuse Arizona of irresponsibility while the federal government is refusing to fulfill its responsibility to control the nation's borders, is passing strange and marches boldly into negligent. Such control is an essential and absolute attribute of national sovereignty. America is the only developed nation that has a 2,000-mile border with a developing nation, and the government's refusal to control that border is why there are an estimated 460,000 illegal immigrants in Arizona and why the nation, sensibly insisting on first things first, resists 'comprehensive' immigration reform.

Arizona's new immigration law shows what happens when a state on the front lines of a failed immigration policy reaches the bursting point. What you get is a blunt instrument that produces lawsuits, more political polarization (if that's possible) and the risk of hostility between the local police and the public. The law makes it a state crime to be in the U.S. without proper documents. It allows the police to stop anyone on 'reasonable suspicion' that they may be in the country unlawfully and arrest them on the spot if they can't produce identity papers. The police aren't required to have a search warrant or even to suspect some illegal action has occurred before questioning a person. Traditionally the federal government has enforced immigration laws, so this is an extraordinary state criminalization of a heretofore federal authority. ... The loud voices denouncing 'Arizona' should understand that the results of the nation's failed immigration policies have come down on this state. ... Congressional Democrats have no intention of enacting serious immigration reform before November. President Obama is surely playing politics with the situation in Arizona for gain in the fall. He'd like to pick a fight and define Republicans as anti-Hispanic going into the election, without having to propose anything substantive.
The most effective way to reduce illegal entries and defuse these tensions is to expand legal channels, including guest worker programs, and on this you and I would agree I believe. This would reduce illegal immigration and free up security resources to threats from drug gangs and the like. But so long as Republicans, Democrats and Mr. Obama mainly view immigration as an electoral weapon, the nation can expect more desperate laws like Arizona's.

Eman said...

"We can't solve problems by using the same kind of thinking we used when we created them."

Theoretical physicist Albert Einstein (1879-1955)

suntzusays said...

Police aren't required to have probable cause to question, detain, even arrest someone without obtaining a search warrant. But you aren't required to cooperate with their attempts to search, question, or detain you if they cannot establish probable cause. All that takes is a simple question "Am I being detained or am I under arrest?". If they answer, no, just leave. If they want to arrest you for that, let them. You can always file a complaint later. Out of sheer protest, it should be possible for legal citizens (probably of Hispanic descent, since blue eyes like me won't be bothered over it I expect), to flood Arizona's jails out of civil disobedience for this law. This makes it an ineffective law almost immediately.

I don't think Obama is the one framing Republicans as anti-Hispanic. I think Republicans have done that already. See Jan Brewer's poll numbers right after she signed this bill with Hispanic residents of Arizona. They plummeted, dropped by almost 30 points, in exchange for a gain of about 10 with white voters, which is probably enough to secure re-election as of right now but that's a side note. From a political perspective, all he has to do is fan the flames. He doesn't have to start the fires. I agree completely they have "no intention" of enacting any serious reform. One reason is that they are unlikely to be able to do so anyway. Another is that the status quo bias will maintain the current system as is without really changing it even if a bill is written and passed into law.

As for non-enforcement: Bush (W) was the one who started to ignore the enforcement of these laws. This may have been a politically stupid measure since it did not secure Latino votes for Republicans over Democrats, or it may have secured other vital political constituencies (business owners, investors, etc) and been a pretty smart play for the money end of the political game. But it's hardly only Democrats who benefit from non-enforcement else Republicans would have insisted on enforcement of immigration laws while Bush was in office and they controlled Congress. They did not.

Tragedy101 said...

Eman,

Quantum Mechanics aside, why not?

It is my personal opinion that if we, the people, would do more of our own governing (not in by-passing laws, but in taking responsibility for our own lives and well being), this issue would not be.

This is what I think the people of Arizona are attempting (in a very inept way) to do with the passage of this law. Our current president is stating opposition to personal liberty, in opposing the rights of the states and the people.

They may be making a horrible mistake, but it is their mistake to make; not Congress's.

The Golden Eagle said...

I think that if Arizona is making a mistake, then it should be corrected, even if that means Congress has to take action. If it is a mistake (and I believe that it is) then the bill should be stopped before racial profiling gets underway and Hispanics are prejudiced against based on how they talk or look.

With the law in Arizona, if someone, for example, murders someone else or commits a crime, and if the witness gives the police a reason to "reasonably suspect" them, then where are the people supposed to turn? The police will now be required to ask for papers, and then the crime could go unjustified because of it.

suntzusays said...

Police in Arizona have ALREADY been arresting people who were witnesses to traffic accidents or crimes on the basis of their immigration status.

All the new law means is that this will happen more often and law enforcement through police in legal immigrant communities will be roughly impossible as any contact with police will be a potential "reasonable suspicion" case rather than the "probable cause" definition I would prefer.

Eman said...

If you cross the North Korean border illegally you get 12 years hard labor.

If you cross the Iranian border illegally you are detained indefinitely.

If you cross the Afghan border illegally, you get shot.

If you cross the Saudi Arabian border illegally you will be jailed.

If you cross the Chinese border illegally you may never be heard from again.

If you cross the Venezuelan border illegally you will be branded a spy and your fate will be sealed.

If you cross the Cuban border illegally you will be thrown into political prison to rot.

If you cross the United States border illegally you get:

1 - A job
2 - A driver's license
3 - A Social Security card
4 - Welfare
5 - Food stamps
6 - Credit cards
7 - Subsidized rent or a loan to buy a house
8 - Free education
9 - Free health care
10 - A lobbyist in Washington
11 - Billions of dollars in public documents printed in your language
12 - Millions of servicemens and women who are willing to - and do -die for your right to the ways and means of our constitution
13 - And the right to carry the flag of your country - the one you walked out on - while you call America racist and protest that you don't get enough respect.

Liberty said...

Eman- it is irrelevant what other countries do to/with illegal immigrants, just as it is irrelevant what they do with detainees/POWs, the resources they are given, how they deal with famines, floods, earthquakes, wars, etc. That does not matter.

What does matter is how WE treat them. Don't know about you, but I really don't want to see the day we start just wantonly shooting people. So let's find a more peaceful way to do this. Let these immigrants find the legal way. A quicker legal way, that doesn't take years to accomplish. That would probably reduce our problem. Let's also end the "war on drugs" (it does nothing anyway) and divert that money to more profitable ventures- like better equipping the border patrol, increasing the size and resources of the immigration department, etc. To my mind, that would do more to help our problem of illegal immigration that a lot of other things- like, for instance, just stopping people on the basis of "reasonable suspicion."

Eman said...

Liberty, my point was made to give you perspective on the contrast of US vs. THEM. How can you say what others do has no bearing on the argument? To say what others do is irrelevant leaves me with just one thought: We do way too much for way too many way too often. Some of these other countries have been far longer than us. Oh to be sure we are the flagship of freedom, but at what cost to the free do those take advantage of the freedoms others have fought and died for? If you’re going to come here and reap the benefits of our freedom and vast opportunities, you can’t just walk across the boarder and expect us to educate your kids and you, pay for your healthcare, give you a preferential treatment such as affirmative action, and not expect you to fill out forms and stand in line and learn the language like those who do it the right way. I think you are way off base here. You want to give people something for free when they have earned nothing at all: That instills an entitlement mentality and a dependency on government which is socialist thinking. I’m unwilling to give these people who knowingly and deliberately broke the law any kind of preferential treatment. You can’t round them all up and send them home: I understand that, but you don’t give them a break for breaking the law. They have to go through the process just like anyone else and if they WON’T, then get out! You want to give these illegal’s something nice for doing something bad. I can’t disagree with you more than I do now. I will never stand with any law that grants them amnesty. Never!

suntzusays said...

I wouldn't say its "irrelevant" what other countries do with these things. Sometimes it has tremendous effects on trade or foreign policy.

But certainly for determining what we should do here, it's not very useful. We might look for "effective" programs adopted by other nations in order to learn from them to solve similar problems here. But by and large the reason people don't sneak across the border to China or North Korea isn't because they could be shot or detained when they get there. It's because there are minefields on the border and not much reason to sneak in in terms of economic opportunities (especially for the DPRK). This is changing in China obviously, but it's not built up the historical credibility that we have on this front as a free and open nation. Maybe in 50-100 years we'll see China struggling with more immigration debates of its own.

Liberty said...

Sun Tzu- that's more what I meant. It's useless in the way of determining what we should do... :))

Eman- never said I was for amnesty or any such program. Ever. In fact, I am of the opinion that the "social safety net" isn't such a great idea in the first place, but that's a whole 'nother debate.

Do I think it is wrong that illegals get the 'net just like citizens? Mm, yeah, I guess so. Do I think they should have to become legal before they come here? Yeah. But like I was saying, we need to find out why illegal immigration is such a problem. Who is coming across the border, and why? Is it for economic advancement? Drug opportunities? A chance to make a new life?

Furthermore, why do they come over the border illegally instead of doing it the right way? Because they don't have money? Because they need something now and they can't afford to wait? Because the waiting times are too long for their purposes?

There are a lot of factors there. There is a reason these people are coming here illegally, and we need to find out why so we are better suited to taking care of the problem.

Also, just FTR: I know some legal immigrants who don't speak much English. America doesn't have an official language any more than it has an official religion. It has a predominant language, but that isn't exactly a mandate. ;)

Teresa said...

First, allowing illegal immigrants to cross the border to better themselves is not going to solve the underlying issue which causes their need to come here in the first place.

Secondly, I think it would be good if there was more pressure put on the Mexican government to stop the gang related violence, create employment, and build up the infrastructure. Maybe, if there were some incentives for employers to move a business to Mexico that would help the situation in Mexico?

Third, the law in Arizona just enforces the federal law but at a State level. The illegal immigrants must have committed another illegal violation that would be applicable for any citizen to even be questioned as to whether the person is an illegal immigrant or not.

suntzusays said...

"More pressure to stop the violence" to me equals at least the legalisation of marijuana (both here and as a result of our more sane approach, in Mexico as well), as the underlying cause of much of that violence.

"create employment, and build up the infrastructure." - Governments can build infrastructure, but they cannot "create employment." Pressuring Mexico to do this is just as ridiculous as people pressing the Obama administration to do something about "jobs" some months ago. And then who were also whining about the stimulus bill claims of job creation.

Ask any cop, and it's not hard to "find" a reason to pull someone over and cite them something if they really wanted to do so. There are literally hundreds, if not thousands of laws on the books that can be enforced that simply are not which can be used to target immigrant populations (or the general population as a whole, come to think of it). The division of Maricopa county's police that was already empowered through a federal program to do exactly as this bill describes has long been engaged in stopping and detaining immigrants, illegal or otherwise, within its jurisdiction under precisely these often specious legal situations. The same is true with border police departments in Texas (other than El Paso) which have programs and laws intended to deal strictly with gang violence who then rounded up immigrants. And not gang members. For the sake of argument here, just try to come up with a cogent and consistent legal definition for such things as "disorderly conduct" that does not ultimately boil down to "whatever the cop thinks he can harass and potentially arrest you for and get away with".

The issue there is in part that the laws should not be enforced to begin with, but it is also very much at issue how they will be enforced. White majority voters (ie, the legal residents of non-Hispanic descent) don't care because they don't perceive themselves to be at threat of the long arm of the law. If the law required the legal residency or immigration status of any traffic stop to be checked, say as a mandatory police action, do you imagine such a law would have passed? If not, then why have the law they passed? If so, then why not have a law which does so instead of the law they passed?

Teresa said...

I wouldn't mind if marijuana was legalized. It is the hard core drugs that I worry about.

There can be incentives to lower the unemployment rate but increasing taxes on the wealthy, and spreading the wealth is a bad way of trying to help people attain work, especially when the people your increasing taxes on are the very people who do the hiring ( or authorize the number of persons who can be hired).

That is fine and well for Maricopa County, but now the rest of the State can enforce the State law which pretty much follows the federal law word-for-word. There is so much violence and kidnappings going on in Arizona I doubt that the police officers are going to go out of there way to hunt down the illegal immigrants or stop them for no reason(there will always be a few bad apples though). The law states illegal immigrants must have committed an unlawful act before even being asked about their immigration status, and an amendment was added to specifically prohibit racial or ethnic profiling.


Under the federal law, that in 42 states immigrants must carry there green cards and other documentation so the Arizona law is only making it possible for there state officials to enforce the law.

One of the primary responsibilties of a sovereign ( United States)is to keep its citizens safe and maintain its borders and the federal government is failing miserably in doing this.

suntzusays said...

http://volokh.com/2010/05/08/why-the-arizona-law-is-much-worse-than-the-federal-law-it-is-supposedly-based-on/

Eman said...

Recently large demonstrations have taken place across the country protesting the fact that Congress is finally addressing the issue of illegal immigration. Certain people are angry that the US might protect its own borders, might make it harder to sneak into this country and, once here, to stay indefinitely. Let me see if I correctly understand the thinking behind these protests.
Let's say I break into your house. Let's say that when you discover me in your house, you insist that I leave.
But I say, 'No! I like it here. It's better than my house. I've made all the beds and washed the dishes and did the laundry and swept the floors. I've done all the things you don't like to do. I'm hard-working and honest (except for when I broke into your house).
According to the protesters:
You are Required to let me stay in your house
You are Required to feed me
You are Required to add me to your family's insurance plan
You are Required to Educate my kids
You are Required to Provide other benefits to me & to my family
My husband will do all of your yard work because he is also hard-working and honest. (except for that breaking in part).
If you try to call the police or force me out, I will call my friends who will picket your house carrying signs that proclaim my RIGHT to be there. It's only fair, after all, because you have a nicer house than I do, and I'm just trying to better myself. I'm a hard-working and honest, person, except for well, you know, I did break into your house
And what a deal it is for me!
I live in your house, contributing only a fraction of the cost of my keep, and there is nothing you can do about it without being accused of cold, uncaring, selfish, prejudiced, and bigoted behavior. Oh yeah, and I DEMAND that you learn MY LANGUAGE so that you can communicate with me.

Why can't you people see how ridiculous this is?!