When it isn't being mocked or misinterpreted, the Tenth Amendment is conveniently ignored. by Dan Alba
(libertarian)
Thursday, July 8, 2010
The U.S. government is suing the state of Arizona over a recently passed Arizona law which "[r]equires officials and agencies of the state and political subdivisions to fully comply with and assist in the enforcement of federal immigration laws." The feds allege the law is an unconstitutional power grab, and prevailing wisdom says the state of Arizona should pay for the alleged injustice to its "supreme." In any event, it's one of those rare instances of American independence that cause major embarrassment and political difficulties for the morbidly inadequate federal government, especially during election season.
If the major news media were to narrate the story focusing on the pertinent constitutional parameters, shrewd observers would likely see the allegation as a fig leaf. Instead, the most indomitable and aggressive monopoly on the planet assumes the role of victim, partly because the press — whether unintentionally — assists it. "The heart of the legal arguments focus on the Constitution's assertion that federal laws override state laws," claims the AP, whose comprehensive narratives speak sympathetically of the feds' concern "dat[ing] to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority."
The Founders knew from contemporary experience that central governments never really lose power. No wonder the Supremacy clause only allows a federal law to "override" state laws when said federal law is "in Pursuance" of the faithful execution of the enumerated powers granted to the federal government by the Constitution. Unlike with naturalization, the power over immigration is not enumerated in the Constitution. And according to the Tenth Amendment, the states and the people reserve any powers not granted to the U.S. government by the Constitution. Common sense, then, should say immigration policing within individual states is neither an authority nor a right of the federal government. Whereas, to take the mistaken supremacy assertion to its end, one may as well concede to the feds the right to prohibit private Arizona property owners from repelling trespassers and home invaders.
And how often do states "usurp" U.S. government power? Hardly ever, if at all. American history is brimming with the opposite scenario. The 16th and 17th Amendments and the income tax are major examples of unconstitutional federal powers. State laws legalizing marijuana growth, sale, and use are constitutional but federally overridden, usually through the Interstate Commerce clause, even when the "offender" has neither the intention nor the history of moving product across state lines.
The Tenth Amendment, if anything, should be at the "heart" of the current row as reported by a diligent press. Sadly, the U.S. Constitution is rarely mentioned except to suggest the inevitability of federal supremacy.
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Posted By: Becky Chandler
Date: July 9, 2010 02:01:53 AM
You would be hard pressed to find a bigger tenth amendment fan than me. But this is the most idiotic place to claim it has any relevance. Although I realize that the constitution uses the word "naturalization" and not "immigration" in describing the federal power in this area- In the system set up by the constitution it is preposterous to claim that the otherwise brilliant drafters would have left immigration policy up to the states. If this was not the case Illinois could set their own policy--and permit Osama bin Laden and the rest of the jihadists into their state. To say the states can set their own immigration policy and enforcement is Tenth Amendment Delusional Insanity.
You can validly question whether the activities authorized by SB 1070 are setting immigration policy, or are in conflict with federal law-- but the tenth amendment has no relevance here.
You would be hard pressed to find a bigger tenth amendment fan than me. But this is the most idiotic place to claim it has any relevance. Although I realize that the constitution uses the word "naturalization" and not "immigration" in describing the federal power in this area- In the system set up by the constitution it is preposterous to claim that the otherwise brilliant drafters would have left immigration policy up to the states. If this was not the case Illinois could set their own policy--and permit Osama bin Laden and the rest of the jihadists into their state. To say the states can set their own immigration policy and enforcement is Tenth Amendment Delusional Insanity.
You can validly question whether the activities authorized by SB 1070 are setting immigration policy, or are in conflict with federal law-- but the tenth amendment has no relevance here.
Good morning, Becky. Should Arizonans not be allowed to prevent OBL or those so-called jihadists from blowing people up, once the Feds let them slip by at the border? You assume that the issue is about immigration policy in general. It's not. It's about the enforcement of immigration law already on the books, vis-a-vis immigrants already inside Arizona, and in response to the feds' historically brilliant track record in this area. Besides, why should the federal government have a monopoly on law enforcement in Arizona? (Or maybe there should be a monolithic federal police force that does everything, top-to-bottom?) But let's say the issue really is about immigration policy in general. If you're such a fan of the Tenth, then why do you want the federal government to have the authority to force Arizona and its people to let Osama bin Laden live and work in Arizona?
The border you mention in your article is not a state border at all, it is a federal border. It divides two countries. Arizona does not have any serious diplomatic or other relations with Mexico.
The Feds, in this case, can tell Arizona to do whatever the Feds see fit with the national border [within legal guidelines]. They do not have the same right in regards to Arizona's state by state borders. By the way, I am no fan of any border of any kind and see them only as an impediment to real freedom.
Any analogy to the income tax is ridiculous. The Feds have no right to demand an income tax directly from citizens, although a "head" tax would be justified [based on federal protection from aggressive threats to citizens] The Feds could also demand taxes directly from states based on federal services and states can pay with funds they collect in a manner of their choosing. But the income tax, although unjust in many ways and greatly increasing central control and federal power does not remotely connect with the Arizona border case.
However, there should be no reason that Arizona can't succeed completely from the US and carry on with Mexico and the rest of world in any manner they choose. They could also restrict entry from neighboring state if they wish. I would be all for it and wish them the best.
The border you mention in your article is not a state border at all, it is a federal border.
I agree, but the border is not mentioned in the article.
The Feds, in this case, can tell Arizona to do whatever the Feds see fit with the national border [within legal guidelines]. They do not have the same right in regards to Arizona's state by state borders.
Though they'd gladly use the "whatever the Feds see fit ... within legal guidelines" argument to reason away some "implied" Interstate Commerce power.
Any analogy to the income tax is ridiculous. ... [T]he income tax, although unjust in many ways and greatly increasing central control and federal power does not remotely connect with the Arizona border case.
Good thing I didn't make an analogy. I wrote that to provide historical context in countering the AP's ahistorical notion of such an historic threat of decentralization. (And again: it's about immigration-law enforcement, not the border.)
Apparently, the only thing you and I disagree on is whether the feds rightly have a monopoly on law enforcement within the state of Arizona. I take partial blame here, as I probably didn't elaborate on that so well in the article.
Yes, the point that i disagree on is that I think the feds should have jurisdiction also over state action within state borders concerning control of the border. One of the few powers I would grant them if they ask me. Of course, if they ask me, I would get rid of both of them and let people live whereever they wanted and were able to!
I totally agree on your press takes, including the newest one. You might give my article a read that is situated between your two, in a roundabout way it is about the press also, although mainly about state economic intervention.
