Feds Argue Pre-Eminent Authority over Immigration
by P.A. Madison on July 12th, 2010
One of the core arguments advanced by the Justice Department in a lawsuit against Arizona’s immigration law is that under “our constitutional system, the federal government has pre-eminent authority to regulate immigration matters.” The government further states this “authority derives from the United States Constitution …”
Here is the problem with this: There is zero evidence the States had ever surrendered their authority over internal State immigration matters to the federal government. The Constitution’s enumerated powers say nothing about immigration. What power not expressly granted means it was expressly withheld.
I know some will say the power to make uniform rules of naturalization is the power grant over immigration. This argument, however, could never pass the smell test because immigration and naturalization was always viewed as two separate and unrelated subject matters. Immigration deals with movement of people while “uniform rules of naturalization” deals solely with citizenship requirements.
Immigration has always been a primary concern and exercise of the States themselves rather than a federal concern after the adoption of the current Constitution. Additionally, States continued to maintain their own immigration bureaus and immigration commissioners within select countries.
When Congress made treaties that touched on immigrants within States it was made clear that State law dictated the rights and liberties of the immigrants and not anything national law could because such laws would never be in pursuance to anything authorized by the Constitution. State immigration matters was never viewed as anything having to do with foreign affairs but only with internal State affairs, which explains why the court avoids the immigration question all together through its “plenary power” doctrine.
The court is fully aware of the fact there is no vested concern over internal State immigration found under the US Constitution. To get around this major obstacle the court had to make a half-hearted argument that immigration was an “incident of sovereignty belonging to the government of the United States.” This can be translated to mean the power over the time and manner of setting your sprinklers is an “incident of sovereignty belonging to the government of the United States.”
In other words, there would be no limit to what the government could claim is an “incident of sovereignty belonging to the government of the United States.”
For Congress to claim “pre-eminent authority to regulate immigration matters” two conditions must be true, 1) the power be expressly delegated, or incident to an express power and, 2) the power must be expressly withheld from the States. Because neither condition is true, there is not even a question of concurrent exercise involved.
In a world of truth and honesty it is Arizona who can claim pre-eminent authority over immigration matters within Arizona and not Congress.