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.


Feel free to share.

9 Responses | Leave a Comment
  1. Amos says:

    Do you know what US Supreme Court ruling this Judge is referring to?

    Yes, this: http://scholar.google.com/scholar_case?case=15661608482215594777

  2. Hatch says:

    Congress can make any law without regard to limits on enumerated powers- until challenged. This is looking like the first real challenge. Arizona has committed to take it to SCOTUS if it is enjoined. It is high time that a real judicial review take place on Congress’s excessive reach.

  3. JimAZtec says:

    However, I was taken back by Judge Susan Bolton’s suggestion that, making the lack of immigration documents a State Crime could violate a Supreme Court ruling prohibiting states from creating their own “immigration registration systems”.

    That doesn’t make any sense to me because states aren’t prevented by the constitution from creating “immigration registration systems.” And like Madison explained, the power isn’t invested with congress to do. Probably isn’t going to matter because whatever the courts do the constitution will have zip influence.

  4. Jim B. says:

    While agreeing with you completely on this, and seeing that Arizona is stepping up to the plate to assert their States Rights by the US Constitution. However, I was taken back by Judge Susan Bolton’s suggestion that, making the lack of immigration documents a State Crime could violate a Supreme Court ruling prohibiting states from creating their own “immigration registration systems”.

    Do you know what US Supreme Court ruling this Judge is referring to? And, given that this is a “Supreme Court Ruling” and not a Congressional Act/Law, how can the Supreme Court “make a law” that would prohibit States from doing anything? As we know the Supreme Court should only decide if laws are Constitutional or not. They don’t make laws – prohibitive or requirements or otherwise.

    Interesting how this case has been seriously twisted!

  5. George Williams says:

    Bravo, PA Madison! I’ve been awaiting your argument on this issue for years now. Anyone who’s looked at the wording of the COTUS would find it a stretch that the federal government has plenary power over immigration. It plainly references naturalization rules and not immigration. The left are so use to perverting the COTUS to their own ends by inventing imaginary fine print between the lines that they are hardly capable of making a rational interpretation of that document. The Democrats hopefully have made a tactical and strategic error in their calculations, tactical in the sense that they will lose this case based on a fallacious and strategic in that it will give impetus to other challenges of federal usurpation of state’s rights.

  6. John says:

    … or to the People, (the 10th is often misquoted as just States rights)

  7. Terry N. says:

    Not limit but to define limited powers. All undefined powers was retained as reserve powers belonging exclusively to the states.

  8. James says:

    The United States Constitution does not grant powers to states, it is supposed to limit the government on every level.

    • Janis Keller says:

      @James:

      James, it’s easy to see that you have never read the Constitution. You can google it easily according to subject. I happen to have a copy my daughter received when she went teapartying in Atlanta, close to where we live. States are granted power for themselves. The federal government is limited in its power. You need to read it, and if it’s hard to understand, go googling!

Leave a Reply




You may edit your comment after being submitted.