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View Full Version : Regulation of Immigration Historically a State Function, Constitutionally speaking




bobbyw24
07-20-2010, 07:06 AM
Constitutionalism
Regulation of Immigration
Historically a State Function
By Joseph Baldacchino

Besides dealing with a crucial issue of public policy, the controversy over Arizona’s recently adopted law concerning aliens within its borders illustrates a disturbing lack of familiarity with relevant constitutional law and precedent. The controversy offers a striking example of the deterioration of American constitutionalism.

The state law in question, enacted in April, requires police in Arizona to check the legal status of persons whom they reasonably suspect of being in the country illegally while forbidding racial profiling. The purpose is to “discourage and deter the unlawful entry and presence of aliens” within the state’s borders.

The Justice Department in Washington has asked a federal district court to block Arizona’s enforcement of the law, arguing that “the power to regulate immigration is exclusively vested in the federal government.” In support of its position, the department cites the clauses in article I that give Congress authority to “establish an uniform Rule of Naturalization” and to “regulate Commerce with foreign Nations” as well as the clause in article II authorizing the President to “take care that the Laws be faithfully executed.”

For its part, Arizona does not deny the preeminent authority of the federal government to regulate immigration. Rather, it contends that its law is meant only to enforce already existing federal immigration laws that are not being adequately enforced by the federal government. “The truth is the Arizona law is both reasonable and constitutional,” according to the state’s governor, Janice Brewer. “It mirrors substantially what has been federal law in the United States for many decades. Arizona’s law is designed to complement, not supplant, enforcement of federal immigration laws.”

Yet it is a measure of how much constitutional interpretation has changed over time that at an earlier period of American history it was generally accepted that the regulation of immigration was primarily a state function, and the big question waiting to be settled was whether the federal government had any share in this power.

If this seems strange, it is because Americans, since the creation of the Bureau of Immigration and Naturalization in 1906, have come increasingly to think of the regulation of immigration and that of the naturalization of citizens as closely related functions. Earlier, however, the two forms of regulatory activity were viewed as distinct. Thus, Congress enacted the first federal law establishing requirements for naturalization in 1790, within a year of the adoption of the Constitution. But it was not until 1875, nearly a century later, that Congress first placed any restriction on immigration.

Prior to that time, the U.S. Supreme Court recognized in a series of decisions that the control of immigration was a constitutional function of the states as part of their “police power.” The latter, considered a direct attribute of sovereignty, includes the authority to make all laws within a state’s territory for the protection of public order, safety, health, welfare, and morals.

While never directly addressing the immigration issue, Chief Justice John Marshall, though a renowned champion of strong national governance, declared in several landmark decisions (Gibbons v. Ogden, 22 U.S. [9 Wheat.] 1 [1824] and Brown v. Maryland, 25 U.S. [12 Wheat.] 419 [1827]) that the general government had no jurisdiction over such matters except when authorized by an explicit grant of power, such as the power to punish counterfeiting given in article I, section 8.

http://www.nhinet.org/epistulae10.htm

constituent
07-20-2010, 08:19 AM
alright, people are starting to get it!

bobbyw24
07-20-2010, 08:30 AM
alright, people are starting to get it!

As a lawyer, law school brain washed me into thinking Immigration was an exclusive area for the Fed Govt. I see it differently now that I have actually looked into it

constituent
07-20-2010, 08:36 AM
As a lawyer, law school brain washed me into thinking Immigration was an exclusive area for the Fed Govt. I see it differently now that I have actually looked into it

Yea, law school is a racket.

constituent
07-20-2010, 10:06 AM
I can't help but feel that many on this forum could benefit from reading this article. It would be terrible if those folks missed it b/c it fell to the bottom of "new posts" so early in the day.

bobbyw24
07-20-2010, 06:52 PM
I can't help but feel that many on this forum could benefit from reading this article. It would be terrible if those folks missed it b/c it fell to the bottom of "new posts" so early in the day.

I agree--time for the evening folks to check it out

Live_Free_Or_Die
07-21-2010, 06:47 AM
I told you so

qft

constituent
07-21-2010, 06:49 AM
...

constituent
07-21-2010, 06:49 AM
qft

hahaha, thanks man!

for too long we've been a two-piece orchestra. :)