The Federal Suit Against Arizona is Joined by Mexico
The Obama Administrating filed a law suit this week against the State of Arizona, specifically to stop enforcement of a State Law which mirrors a Federal Law governing Immigration. The Federal Suit has been Joined by a Suit filed by the Mexican Government. (See references to Article 10)
The Brief (download here PDF via Washington Post) contains the following:
(i)
“In this action, the United States seeks to declare invalid and preliminarily and
permanently enjoin the enforcement of S.B. 1070, as amended and enacted by the State of Arizona, because S.B. 1070 is preempted by federal law and therefore violates the
Supremacy Clause of the United States Constitution.”
and
(ii)
“ In our constitutional system, the federal government has preeminent authority to
regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws…”
Regardless of the content of the suit, the Federal Government, by first naming the Supremacy Clause, hopes to end any challenge from Arizona based solely on this particular clause – which, according to the original verbiage used in the US constitution may not apply. The Clause, so named, refers to Article IV, which states (FindLaw):
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
As far as any one is aware, the State of Arizona has not entered into any treaties – strictly construed.
The Supremacy Clause referred to in Obama’s (Holder’s) Brief:
(Find Law on Marshals interpretation of the Supremacy Clause as it applies to States) – the findings regarded the imposition of taxes, trade, terrifs and finally treaties:
The Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution. Their obligation ''is imperative upon the state judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States--'the supreme law of the land'.'' 18 State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court.
The preceding opinion by Justice Marshal was based upon Article 1, Section 8 of the U.S. Constitution, specifically as applies to tariffs, treaties, and the like. The so called “Supremacy Clause (i.e. The Federal Government Always Wins), has not, to date, addressed immigration.
Perhaps this is because Illegal Immigration is not specifically addressed in the Constitution – The Argument: found at US Constitution. Net, entitled “Things Not Found in the Constitution”
Immigration
The Constitution never mentions immigration, so how is it that the rules for immigrants, and quotas from countries, are set by the federal government and not by the state governments? After all, as the 10th Amendment states, are the powers not delegated to the United States held by the states, or the people?
The Supreme Court has ruled that the Congressional power to regulate naturalization, in Article 1, Section 8, includes the power to regulate immigration (see, for example, Hampton v. Mow Sun Wong, 426 U.S. 88 [1976]). It would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how that immigrant can come into the country in the first place.
There is also an argument that immigration is an implied power of any sovereign nation, and as such, the federal government has the power to regulate immigration because the United States is a sovereign nation. While it is true that the United States is a sovereign nation, and it may be true that all sovereign nations have some powers inherent in that status, it is not necessary to determine if immigration is such a power that does not even require constitutional mention, because the Naturalization Clause handles the power.
Therefore, as it appears the State of Arizona has not entered in to any Treaties, and it by strict interpretation of the Article 8, which states nothing specific regarding immigration being the federal domain - strictly speaking – the Federal Government may be about to trample on the Kicker:
The 10th Amendment: (Or Powers prohibited to the States)
The State of Arizona, embattled on their borders
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Taking the 10th Amendment regarding the limitations of States right, there is no mention made of anything other than Congress and its ability to hold the national purse strings. However, it does give Arizona the right to protect itself, implicitly.
As Arizona has been invaded by criminals from another country, it has every right to assemble its own army and enter into war, as it has been invaded and the citizens (according to several news accounts) have been murdered – delay, to the Citizens of Arizona, is not an option.
Therefore, although loosely interpreted as broad powers granted to the Federal Government in the Supremacy Clause, the argument can validly be made that illegal immigration and enforcement is not addressed specifically in the U.S. Constitution (rather naturalization of foreign citizens as outlined by Marshall’s Court so long ago.)
Arizona, therefore, is within its Constitutional rights as regards the enforcement of criminal laws within its borders, and, as the Arizona Law mirrors the Federal law, it does not attempt to usurp Federal Power. Should Jan Brewer decide to call a militia together, arm them, and enter into a war on the border, she’s within her rights as the Governor of the State, under the 10th Amendment.
Whichever Justice hears this case; they may stop at the Supremacy Clause, and rule in Favor of the Administration, (extremely loose interpretation). At that point, one would hope Jan Brewer takes this all the way to the Roberts Court.
Addendum: As noted in his inaugural address, President Obama’s favorite President remains Abraham Lincoln, which one would think odd, as Lincoln was a member (or founder some say) of the Republican Party, and/or it may have been looked upon due to his role in the Civil War and Slavery – However, what is not often mentioned is that, of all the Presidents, Abraham Lincoln suspended the Constitution, used the Constitution to increase the powers of the Executive Branch, imprisoned journalist and editors, ad nasuem. It was that aspect of the historical nature of Lincoln that made one shudder when Obama declared him “his favorite”. Here’s to Arizona, who is in need of a strict constructionist.
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