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Arizona's Illegal Alien Law And The Constitution

Now that Arizona has "acted stupidly" and decided that it's going to enforce illegal alien laws after the federal government has utterly failed to do so, there's a big argument over the rightness of this action.

The anti-Arizona law side says that enforcing immigration law and border security is strictly the bailiwick of the federal government. The several states have no business acting in this matter; it is purely a matter of federalism.

The pro-Arizona law side says that the state has an obligation to protect its citizenry, and the federal government simply isn't doing its job adequately.

It should come as no surprise that I come down in favor of the Arizona law. And I think I have a unique argument to back it up.

Last year, Phoenix, Arizona won the dubious honor of being named the "kidnapping capitol" of the US, and the majority of those abductions were related to the Mexican drug cartel wars.

And just a few weeks ago, an Arizonan rancher (who had a history of helping out illegal aliens crossing the border, many of whom trashed his property in the process) was shot and killed on his own property by a gunman who fled across the border to Mexico.

Now, since we're in an era of viewing the Constitution as a "living document" that evolves independently of that pesky, challenging "Amendment" procedure, let's take a look at that document -- especially the 10th 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.

The United States, as embodied by the federal government, has the power to enforce the borders. As such, it is forbidden for the states to exercise powers in that field.

But the federal government has failed miserably to exercise its rights in that area. So, it can be argued that they have abandoned that right.

Just because the federal government has chosen to not enforce our border security, that doesn't mean that the problem just goes away. It still has to be dealt with. So why shouldn't the several states step up and fill the gap?

A right not exercised doesn't go away. But an obligation not fulfilled can be considered an obligation abandoned.

The message being sent to Washington from Arizona is a simple one: "if you won't do your job, then we'll do it."

So far Washington's response sems to be "just because we aren't doing it, doesn't mean you can." Instead of being shamed at being caught out, they're instead fighting for their right to... well, do nothing.

It'll be fascinating to see how this plays out.


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Comments (24)

Two ways to reduce crime:<b... (Below threshold)

Two ways to reduce crime:
(1) actually ENFORCE the law
(2) make less things "illegal"

The Obama Regime wants to turn all the "Illegal Aliens" into "Democrat voters" this year! Problem solved!

adverse possession requires... (Below threshold)

adverse possession requires the (tacit) acquiescence of the person you're taking from... which isn't happening here, the feds are not going to not object to Arizona.

Jay,You should rem... (Below threshold)


You should remember the case in New Hampshire:
1. Sheriff in a NH town was tired of illegal immigrants breaking the law.
2. After yet another routine traffic stop where the driver didn't have a license because he wasn't here legally, the sheriff arrested him and his friends.
3. Under the NH RSA, "trespassing" is broadly defined: essentially it is being somewhere you have no right to be. Therefore, illegal immigrants are trespassing everywhere in the state.
4. It went to court. The judge found the interpretation of state law to be interesting and, presumably, valid.
5. The Feds showed up with no indictment against the men and no stated intention of doing anything, but they asked the court to throw it out on the grounds that it was a federal matter.
6. Unfortunately, the judge dismissed the case.

Very disappointing, and (IMHO) totally wrong. If the state and the federal government have a dispute over prosecution of a criminal, then the only way that they get to walk out of the courtroom with the accused is to show up at the courthouse with a US Marshal, an indictment, and agree to turn over the accused back to the state if they decide drop the matter.

Let's hope Arizona has better judges.

RE: "The United States, as embodied by the federal government, has the power to enforce the borders. As such, it is forbidden for the states to exercise powers in that field."

Says who? The Constitution lists the powers that the federal government has, but that doesn't mean that states don't also have that power. States such as Arizona used to enforce state agricultural checkpoints at the state border. As long as the state doesn't unduly interfere with interstate commerce, it's OK. If the state of Arizona wanted to build a fence along the Mexican border, the Feds would gripe about it, but I don't recall anything that makes it illegal.

Steve, I don't think the pr... (Below threshold)

Steve, I don't think the principle of adverse possession applies here. The power to enforce immigration laws isn't property, it's a responsibility.

The principle here is abdication of said responsibility and the application of the Tenth Amendment.

No Federal funding i... (Below threshold)
Adrian Browne:

No Federal funding involved?

The essence of this bill is... (Below threshold)

The essence of this bill is the enforcement of existing federal law regarding illegal immigration. The feds say that AZ doesn't have the constitutional right to enforce those laws.

Don't the states enforce other federal laws?

If so, why wouldn't it be legal for the states to enforce these particular federal laws?

JayBy your argument,... (Below threshold)

By your argument, States can't have National Guard Units which one of their main purposes is to defend the U.S. and States can't enforce Federal laws. I'm sure there are plenty of other examples like Governors encouraging foreign commerce including buying their state products and vacationing in their states. Remember foreign commerce is the Federal government responsibility. It is just a example of how easy it is to overreach in reading a too literal translation of an amendment.

I believe you and many others are misreading the 10th Amendment. It was originally intended to limit the Federal Government.

Wayne, I think you may be m... (Below threshold)

Wayne, I think you may be misreading Jay's position.

I still think the state of ... (Below threshold)

I still think the state of AZ should build a fence around the state. Three sides. Keep out people from California, Colorado and anywhere east of the Missipi river. Liberal immigration has done more damage to this state than any equal number of illegal immigrants.

I like the new law. It reflects the will of the people reasonably well. It won't be abused any more than any other law on the books. We have some great LEO in this state and some lousy LEO, this new law won't change that.

If organizations that don't like this law wish to boycott the state, GREAT! IF Rep Grijalva wishes to boycott the state, GREAT! If it is so bad I would like to invite him to resign in protest!!

Ultimately, what is the Federal Government going to do about this? Cut off stimulus funds, refuse to enforce immigration laws?

McGeheeI take it tha... (Below threshold)

I take it that Jay's position is that according to the 10th amendment that States don't have the power to enforce their borders against illegal immigrants.

"The United States, as embodied by the federal government, has the power to enforce the borders. As such, it is forbidden for the states to exercise powers in that field".

Which I disagreed with. Just because the Federal Government has some control of a certain area doesn't mean it excludes the States from some control in the same area. There a many examples of that. Arizona can't dictate who is an illegal but they can determine how they deal with them to a certain extent.

I take it Jay supports Arizona's attempt to control illegal immigration but think the only legal leg they can stand on is that the Federal Government gave up their rights to control the borders since they fail miserably at their obligation.

I agree the Federal government has failed miserably but that is by far not the only legal leg that Arizona has to stand on.

If I got his position wrong, please specify where.

All Arizona is doing is enf... (Below threshold)
harvey karisma:

All Arizona is doing is enforcing federal law. I know of nothing in our system of government which prohibits state and local authorities from enforcing federal law. In fact, if the state authorities knew of a counterfeiter at work in their state, would then not arrest him and turn him over to the feds? so what is the big deal in enforcing federal law? The only thing I can see against it is a bunch of idiotic, politically correct people.

"...and the federal gove... (Below threshold)

"...and the federal government simply isn't doing its job adequately."

They've all but abdicated their responsibility. All they're interested in doing now is legalizing everyone they ignored the last 20 years.

I'm not optimistic that they'll come up with anything remotely reasonable. After reading all the ridiculous amendments, rendering moot anything meaningful reform, in the last attempt I'm just stocking up on more popcorn for this go 'round.

President Obama's big fear ... (Below threshold)

President Obama's big fear is if he comes to visit the State of Arizona, we'll ask him to prove his citizenship!!

"The United Sta... (Below threshold)
"The United States, as embodied by the federal government, has the power to enforce the borders. As such, it is forbidden for the states to exercise powers in that field".
That has been the position of the federal government, though you and I clearly don't agree. If Jay does, I am surprised. I would say he's mistaken, but I wouldn't berate him for it.

It's my understanding that the federal supremacy clause only prohibits state action if said state action is opposed to the intent of federal law, which Arizona's new law clearly is not. Arizona's legislature wants the feds to enforce federal law, but since they will not the state is picking up the ball, at the expense of state taxpayers.

I do think a strong Tenth Amendment argument can be made -- but any additional authority in Arizona's favor wouldn't hurt. They should make as many arguments as they can think of that find support in constitutional and statutory language.

I read somewhere that the f... (Below threshold)
Tina S:

I read somewhere that the feds could pretty much kill the law simply by not cooperating with the state. All the feds would have to do is simply refuse to accept any immigrants handed over by the state. Weather that is true or not I don't know. This will be getting interesting.

Tina, The solution t... (Below threshold)

The solution to that will be The Air National Guard of Arizona will then fly these individuals to Reagan National Airport outside of DC. walk them out onto the runway, wait 15 minutes for someone to claim them. Then fly back to Arizona with out them.

Meiji_man,Like I s... (Below threshold)
Tina S:


Like I said this will get interesting.

If the federal government c... (Below threshold)

If the federal government can argue that once the other two parties - the states, or the people - have renounced, given up, or waived a right in practice, that it is forever gone (and they have argued this)... then they can go pound sand when we decide that they've abandoned their powers and responsibilities and move to solve the issue ourselves.

McGehee"The United S... (Below threshold)

"The United States, as embodied by the federal government, has the power to enforce the borders. As such, it is forbidden for the states to exercise powers in that field".That statement was from Jays post.

I agree that a State trying to enforce Federal law is not prohibited. Unlike what California does in contradicting federal laws with it marihuana use laws.

It's the Living Constitutio... (Below threshold)

It's the Living Constitution, and the current interpretation reads:

"The powers not specifically delegated to the states by Congress are reserved to the Federal Government and enforced with federal funding."

I find it curious that the federal government has chosen not to enforce its own laws, but forbids the states from following their clear intent.

I also question how it is that Congress so easily tosses off the distinction between illegal immigrants and legal immigrants when there are cameras around. If I was Hispanic and legal, I'd be pretty pissed about that, instead of demonstrating. A lot of people waited a long time to get into this country legally. One would think they would realize that they are being used as political pawns by politicians who don't give a tiny shit about them.

But then I never understood liberals' screeching opposition to the death penalty while simultaneously claiming that unrestricted abortions are a "constitutional right".

The vast RICO-racketeering ... (Below threshold)

The vast RICO-racketeering criminal enterprises that prefer to be called by their street name: "The 'Democratic' potty" (more accurately, "the fascists") long ago declared war on our beloved fraternal republic and have, ever since, allied themselves with our nation's every enemy: the traitor, F D Roosevelt, (he of the so-richly Soviet-agent larded "administration") for example, with his "uncle," Josef Stalin; the (lying, looting, thieving, mass-murdering, co-serial-rapist) traitors, Blythe, (AKA "Cli'ton") with Peking's predators and with the likes of Yasser Arafat -- and the rest of the evil bar-stewards with Islam and with the invading and hostilely-colonizing army of perhaps 35 million criminal aliens "Democratic" potty actions and activities have incited, invited, encouraged and facilitated and that is right now engaged in the process of destroying our nation from within.

A question for any legal-be... (Below threshold)
Hangtown Bob:

A question for any legal-beagles regarding states' rights. Doesn't a state have a right to control who crosses its borders? Many states have mandatory border inspection stations where they check for agricultural pests. Can they also inspect entrants to see if they are in the U.S. legally?

Arizona. The new Nazi Germa... (Below threshold)

Arizona. The new Nazi Germany. Let the "Kristallnacht" begin.

Neil. You're are an idiot ... (Below threshold)
John Q:

Neil. You're are an idiot to the highest degree.






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