The controversy over Arizona’s new law for assisting the federal government in enforcing immigration law is a gold mine for expanding our understanding of the Constitution. A common argument by those opposed to the law is that the Constitution gives the federal government exclusive jurisdiction over immigration policy and enforcement. That is not only illogical but factually incorrect as well.
The Article quoted to support this argument is Article I, Section 8, Clause 5, “[Congress shall have the power] to establish an uniform rule of naturalization”. Naturalization and immigration are not the same thing. Naturalization is the process by which a person becomes a citizen. Immigration is when foreign nationals take up permanent residence in the country. The power of the federal government over immigration would be an implied power, not one of the enumerated powers listed in the Constitution.
Implied powers rely on the interpretation of Article I, Section 8, Clause 19, “[Congress shall have the power] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers…” The key words here are “necessary” and “proper”. As Thomas Jefferson pointed out in his opposition to the establishment of a national bank, a law is necessary only if the power cannot be carried into execution without it. Obviously, controlling immigration is not necessary in order to establish uniform rules for becoming a citizen.
Is it “proper” for the federal government to have exclusive authority over immigration? Definitely not, immigration’s primary impact is on the states and the communities within those states. The practical affects of immigration at the national level is negligible compared to those at the state level. The Constitution is silent on the subject of immigration because it was not an issue at the time. The founders believed that the right to migrate was a natural right inherent in “the pursuit of happiness”. The first law that placed restrictions on immigration was the immigration act of 1875 which gave the government the authority to deny entry into the country of convicts and prostitutes.
The History and Technology Museum in Washington, DC displays a chart that outlines the long legislative history of limits placed on the immigration of various groups: convicts and prostitutes (1875); idiots, lunatics, and persons requiring public care (1882); Chinese (1882-1943); gangs of cheap contract laborers (1885); immigrants with dangerous contagious diseases, paupers, and polygamists (1891); epileptics, insane persons, beggars, and anarchists (1903); the feeble-minded, children under 16 unaccompanied by parents, and immigrants unable to support themselves because of physical or mental defects (1907); immigrants from most of Asia, and adults unable to read and write in English (1917). Legislation since that time set quotas for immigrants by nationality, required registration, and established preferences for certain groups of immigrants, such as those with relatives already here, and workers with skills needed in the US.
Since immigration is not one of the enumerated powers given to the federal government by the Constitution, it is a power reserved to the states under the Tenth Amendment. As the list above indicates, immigration law has traditionally been based on social and economic considerations and in times of war, national security. While it makes sense to have uniform immigration laws at the federal level, it does not make sense to give the federal government exclusive authority in enforcing those laws. This is particularly true in today’s climate of international terror, human trafficking and illegal drug cartels. Immigration law can ONLY be adequately enforced at the state and local level where the illegals actually are.
Constitutional requirements for the federal government concerning immigration is not found in Article I, Section 8, it is found in Article 4, Section 4. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence”.
The state of Arizona has an estimated 500,000 illegal immigrants living within its borders. By any standard that constitutes an invasion. An invasion does not have to consist of an armed military in order to be a threat to the purpose of the Constitution as given in the Preamble, “[to] insure domestic Tranquility”. Not only does Arizona have the right to enforce immigration law, it has the duty to do so. It also has the authority under the Constitution to call out the National Guard to protect its borders. Article I, Section 8, Clause 16, “[Congress shall have the power] to provide for calling forth the Militia to .…repel Invasions“; The word “provide” simply means to make the necessary means available. Article 4 requires the Federal government to acquiesce to the judgment of the state Legislature or Governor in using the National Guard to repel invasion or control domestic violence.