“The Congress shall have the power …To establish an uniform Rule of Naturalization…throughout the United States” (Article 1, Section 8 of the United States Constitution)
“The Congress shall have the power…To regulate Commerce…among the several states…” (Article 1, Section 8 of the United States Constitution)
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Amendment IX to the United States Constitution)
“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.” (Amendment X to the United States Constitution)
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Amendment XIV, Section 1 to the United States Constitution
The above-outlined words of the United States Constitution, if honored by the federal courts, should determine the outcome of the law suit launched by the Obama administration on July 6, 2010 against the State of Arizona, with respect to the latter’s new immigration law scheduled to take effect on July 29, 2010. It is likely to be a close run battle, assuming, as perhaps I should not, that the Justices of the Supreme Court honor their oaths of office.
Initially, Obama’s hired agents, Eric Holder and Janet Napolitano, criticized the Arizona laws on the basis of racial profiling and racial discrimination. One might have expected, therefore, that the case would be based on 14th Amendment grounds. That this is not the case is a tribute to the care with which Arizona’s new law was crafted, and is testament to the fact that Holder and Napolitano had not bothered to read the legislation before publicly trashing it.
So the suit charges the State of Arizona with pre-empting federal law in violation of the Supremacy Clause and the Interstate Commerce Clause of Article 1, Section 8 of the United States Constitution. Both charges, in my judgment are real stretches, and should not convince a majority of the Justices of the United States Supreme Court. They certainly do not convince a solid 60 per cent of the electorate across the entirety of the United States; but then, who in the Obama administration cares about the People (or the separate States for that matter) except as vote fodder for upcming elections..
The Constitution clearly establishes the supremacy of Congress with respect to the Rule of Naturalization throughout the United States. The federal government has exercised that supremacy in the form of laws that govern legal immigration and the process to naturalization. The State of Arizona has not challenged this authority. Its new law targets only individuals who are resident in the State of Arizon in breach of those federal statutes. The Constitution provides no enumerated power for Congress exclusively to enforce its own laws. Therefore, under the Ninth and Tenth Amendments, those powers are retained by the people.
When the federal government clearly is not enforcing its own laws – as is the case regarding illegal immigration at this time – any State threatened with an overwhelming illegal entry has the right to protect its citizens by enforcing the federal statutes. Arizona claims no more than that, except in making it a crime for anyone in the State to solicit work as an illegal immigrant, or to offer work to an illegal immigrant. Of course, Arizona is prepared to apply law enforcement agents to a process that the federal government is shirking. But that does not constitute an attempt to challenge the Supremacy Clause.
The second charge is that the State of Arizona is interfering with inter-state commerce by enforcing illegal immigration laws. This is the stretch that is now used routinely by the federal government to expand its reach beyond constitutional limits. It relies upon a compliant judiciary to endorse such a claim. The argument advanced in court presumably will be that some illegal immigrant, who otherwise might have established an across-state enterprise, will be prevented from so doing once he has been apprehended under Arizona laws; or that some such immigrant will be prevented from crossing State lines to benefit another State by his illegal presence. In the hands of compliant justices, such nonsense no doubt thrives. But the Founders must turn in their graves whenever such subterfuge is successfully pursued.
The real reason why President Obama is coiling in the Arizona desert to strike and emit his venom on citizens of that State, is not constitutional concern, but crude politics. Obama won a significant proportion of the Hispanic vote in 2008 by wink-winking that he would pass legislation to legalize illegal immigrants. He has not, and probably cannot, deliver on that sly promise. So, by attacking the State of Arizona, he hopes to send out two signals, one of narrowly-targeted action and one of national inaction.
Well, no one has ever suggested that an Arizona rattlesnake does not communicate with a forked tongue. So the citizens of Arizona will be ready and waiting for Obama, and for his lawsuit, in those hot desert sands. Although they may fear the legless snakes of the desert, they well know that a much more dangerous enemy moves about on two long legs.