PrintMay 20, 2010
Federal Immigration Law Is Obsolete
A few weeks ago, a caller to Rush's show raised an intriguing question about the Arizona immigration law. To paraphrase the caller: We have federal laws against kidnapping and robbery, yet nobody complains when the states enforce those state laws. Why the uproar over a states enforcing their immigration law?
A very good question, even if facetious.
Critics of the AZ law say that under the Supremacy Clause, immigration law is the exclusive domain of the federal government. Let's say that's true. Then why aren't robberies* the exclusive domain of the federal government?
Under Article VI, the only condition for supremacy is that the federal law be made pursuant to the Constitution. Since federal robbery statutes have been repeatedly upheld as a constitutional exercise of the Commerce Clause, the federal government can claim that robberies too are their exclusive domain.
There is only one possible explanation of why robberies are not exclusively federal: The federal government has chosen not to assert its supremacy at this time. But if it ever did exercise that option, state robbery laws would be preempted, just as the state immigration laws are allegedly preempted.
Further, once the federal government exercises exclusive jurisdiction over robberies, it must have the will and the means to enforce its law. Since federal robbery law would be the only law, non-enforcement of it would be the functional equivalent of legalizing robberies; that is, since the state is prohibited from enforcing its own laws, and since the federal government won't enforce its own, there is nobody left to investigate and prosecute open and notorious robberies. And when the chance of being prosecuted for robbery is almost zero, would not a lot more people opt to come down on the robbery side of the risk-benefit analysis?
That the federal government lacks the means to enforce exclusive federal robbery law is the practical reason it has chosen not to exercise its supremacy in that area of law.
When confronted with the different treatments of robbery and immigration laws, critics of the AZ law must believe that supremacy of federal law is the option of the federal government and that the federal government has chosen to exercise that option with respect to immigration law.
On the other hand, with respect to robberies, some may argue that Congress has fully exercised its constitutional authority by allowing states to regulate robberies, too. In other words, Congress has considered the matter and concluded that the most prudent policy is to allow the states to regulate the matter. The decision itself to allow states to regulate robberies is the assertion of constitutional power.
When the issue before the court is whether the state law is preempted by a federal law, they try to divine the intent of Congress with respect to state laws. Courts look at the history of the legislation, controversies at the time, etc. and decide whether or not the Congress intended to preempt state law. But this is one of the few areas where Congress can functionally overturn a Supreme Court decision. If the Court concludes from its examination of the legislative record that Congress intended to preempt state law, Congress can pass legislation the next day declaring its intention to be the opposite and that the court misconstrued it.
Whatever the view towards supremacy, there is a simple solution in the case of immigration law. Congress can pass a one-sentence law expressing its intentions with respect to immigration law: "No state shall regulate immigration law" or "States may regulate the immigration law." Both of these are a clear, unequivocal expression of Congress's intent.
Will they do it? Of course not. They would have to take a clear position and clear responsibility. Like with so many other issues, politicians treat regulation of immigration as some kind of natural event: They don't know if states can regulate it unless a court tells them so. But is there really any doubt that Congress can regulate immigration, and that they can do so exclusively?
Obsolete laws are ones "on the books" but no longer enforced. If that is an accurate definition, then federal immigration laws are obsolete. According to the critics, it appears that their only effect is to preempt state law, legalizing exactly what they purport to make illegal: If the states can't regulate it and the federal government won't enforce it, then there is no immigration law.
If the federal government does not have the means or will to enforce its immigration law, then it should adopt as a matter of policy an immigration law which allows states to regulate it. In the alternative, the federal government should get out of the business of investigating and enforcing state crimes and free up those resources to carry out its real responsibilities.
*For simplicity, this discussion will be limited to robbery only, but the principle applies to all laws where there is "shared" jurisdiction.
