One of the most absurd aspects of this immigration lawsuit pending in the Ninth Circuit is the notion that a state can have standing to sue the federal government in order to bring in more immigrants, visitors, and refugees. It would be akin to a state suing the president because it doesn’t like his foreign policy or if a state felt that the military deployments are hurting and disrupting the lives of residents of their states. Those assertions may or may not be valid, but they are political, not legal questions.
Moreover, the courts have demonstrated an appalling level of hypocrisy and ignorance of the entire purpose of federal control over immigration by simultaneously ruling against states that wish to clamp down on undesirable immigration and protect their own sovereignty.
Federal immigration power is all about protecting national sovereignty
As we’ve observed in previous columns, immigration laws — generally speaking — provide the president with broad latitude to ratchet down immigration but not the authority to increase immigration. It’s rooted in the concept of national sovereignty and consent-based immigration. A decision to bring in more people must be done judiciously with a transparent debate of all the people’s representatives. A decision to keep out people, on the other hand, is often needed to protect national sovereignty and security at a moment’s notice.
As James Madison wrote in 1835, “[I]n the case of naturalization a new member is added to the Social compact …by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact.” This is why our Constitution vested Congress with plenary power over immigration policy, and why the courts — before they became autocratic in recent years — conceded that they have absolutely no jurisdiction to second-guess the legislature or executive officials on any immigration decision not involving U.S. citizens.
The same principle of national sovereignty is behind the underlying premise of why the Constitution transferred authority over immigration from the states to the national government. The power was transferred to the federal government not for the purpose of violating the sovereignty of the states and forcibly flooding their jurisdictions with endless flows of third world immigrants. It was quite the opposite — to prevent individual states from bringing in too many dangerous or costly immigrants in order to bolster their representation in Congress and thereby negatively affect the entire union.
Commenting on the power of Congress (as opposed to states) over immigration, the inimitable Justice Joseph Story explained, “If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.” While this was written in 1833, every word is speaking to liberals today in states like Washington who want to endanger the nation with unlimited numbers of Sharia-adherent immigrants and refugees during a time of global Islamic uprisings.
Roger Sherman, among the greatest of all the Founders, noted during the House debate on the Naturalization Act of 1790 that “it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner.” (emphasis added) Sherman was emphatic that federal control was designed to “guard against an improper mode of naturalization,” and prevent individual states from flooding the country with immigrants based on “easier terms.”
Thus, the federal plenary power over immigration was not to be used as a hammer to crush state sovereignty with boundless immigration, but rather as a shield to protect states and the entire federal union from irresponsible immigration policies of insidious state officials.
States have power to enforce the law on behalf of their sovereignty, not to violate national sovereignty
Yet, as the courts have done with every aspect of the Constitution, they have flipped the entire structure and purpose of federal power over immigration on its head — upside down, inside out. When states want to protect their sovereignty from a president that blatantly violates statute and the Constitution to harm national and state sovereignty, the courts tell those states to get lost. In some cases, the courts even prevent those states from passing laws to protect their citizens. Yet, when states complain about a president using 100% existing law to protect sovereignty, the courts give the states a forum to codify their political desires for more immigrants into laws that say the exact opposite.
This perversion of the letter and spirit of the Constitution played out in numerous cases. For example, when states sued President Obama for flooding their jurisdictions with refugees without notifying them even after the fact, much less giving them “advanced consultation” — as required by statute — the courts threw out the lawsuit. Now states can demand more refugees when they have no such right!
The courts prevented the Arizona government and Sheriff Arpaio from enforcing existing federal immigration law, yet they have green lighted sanctuary cities.
The courts have blocked Texas from preventing illegal aliens from obtaining birth certificates, thereby disenfranchising and stealing the sovereignty of American citizens. Yet, they have allowed Chicago to ignore ICE detainers.
The courts called Mississippi’s grievances against Obama’s illegal DACA amnesty “speculative,” but have readily welcomed Washington State’s illegitimate grievances demanding more immigrants.
As Justice Scalia made clear in his masterful dissent in Arizona v. United States (2012), a state’s “power to exclude from the sovereign’s territory people who have no right to be there” is “the defining characteristic of sovereignty” and that the “Constitution did not strip the States of that authority.” “To the contrary,” wrote Scalia, “two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782).”
Even a broken clock is right twice a day, but that is not true of the contemporary federal courts. They are wrong all the time and flip the Constitution upside down.
The gospel of liberal jurisprudence comes from the misunderstood Marbury case, in which John Marshall declared, “it is emphatically the province and duty of the Judicial Department to say what the law is. Now we are seeing that the courts have made it their job, with devastating perverse consistency and deleterious consequences, to say what the law isn’t.