In 1787 and 1788, as representatives crafted the Constitution of the U.S. three prominent political writers, Alexander Hamilton, John Jay, and James Madison published a series of what would be called today op-eds. These three were not just writers, but were actively involved in the ratification of the Constitution -- James Madison headed the Virginia delegation at the Constitutional Convention. Through their writings, they hoped to convince the public to support the new Constitution’s ratification. These papers were collected and published in The Federalist. Of the three James Madison was the only writer to extensively discuss immigration. 

Madison argued that the power to establish a “uniform rule of naturalization” must reside in the Federal government because states at that time had different, conflicting rules. He wrote in Paper No. 42: “In one state, residence for a short term confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other.” Madison concluded that without one Federal rule for all states “The very improper power would still be retained by each state, of naturalizing aliens in every other state.” Alexander Hamilton wrote a concurring sentence in No. 32.

Madison’s remedy, which found its way into the Constitution as Article 1, Section 8,  Clause 4, was to empower Congress with the exclusive power “to establish an uniform rule of naturalization” and standardize the conflicting policies then practiced by different states. 

But in the past forty years, for the first time in U.S. history, this Federal power has been gradually usurped; not by states, as Madison feared, but by big city mayors seizing naturalization power through a series of Executive Orders. 

This seizure of congressional power was not promulgated through Press Releases or legislation, it was done surreptitiously, through the quiet use of a two-step strategy. Step one was for city officials to proclaim that they would play no role in enforcing Federal immigration law. This was first done in 1979 by the city of Los Angeles through its illegal and unconstitutional Special Order 40.  

Since immigration law is Federal, local officials have no authority to enforce or not enforce immigration law. In reality these statements were crafted to function as public relations initiatives, as efforts to reach out to those who would enter the area illegally. The large numbers of illegal immigrant juveniles being invited by President Obama into the U.S. today is the boldest expression of the seizure of Congress’ power to control immigration, and Obama’s move has its roots in Special Order 40. 

The second step in this power grab was to proclaim that the city would make all benefits available to “residents” regardless of their citizenship status. The first declaration of this type was an Executive Order proclaimed by Chicago’s Mayor Harold Washington as Executive Order 85-1 “issued” on March 7, 1985. 

The remarkable thing about Harold Washington’s EO was that it used the exact same language as James Madison in The Federalist. The first sentence of Mayor Washington’s EO states: “IN ORDER to assure that all residents of the City of Chicago, regardless or nationality or citizenship…” Here we see the words of James Madison used: residents and citizenship. Through this EO Mayor Washington was blurring the distinction between residents and citizens by stating that all residents will enjoy “access to municipal benefits, opportunities and services.” He topped this off by stating that access to these City benefits would be available to “all persons residing in the City of Chicago, regardless or nation of birth or current citizenship.”

By this simple Executive Order Mayor Washington challenged Congress’ exclusive authority to establish and enforce “an uniform rule of naturalization.” As a person born and raised in Chicago, I have never heard the media mention this EO. It was issued and put into practice in secret. The local media have not, to this day, discussed this Executive Order, in spite of the fact that I have discussed it here in AT several times and extensively documented it in my book Mexicago. Following Mayor Washington’s precedent, seven months later New York City’s Mayor Koch issued a “memo” to city departments requiring them to provide city services to all, including aliens. (NYT, October 15, 1985). 

Today Mexicans -- the major of illegal immigrants are Mexican -- have a birth rate double that of whites, and one child higher than that of blacks. And this is a national figure, not just that of the City of Chicago. Many states now explicitly allow illegal immigrants to have driver’s licenses. This enables them to vote. The state of Illinois, City of Chicago, and Cook County have also proclaimed that the matricula consular I.D. card, issued by the Mexican Consulate and other Central and South American Consulates, is accepted in their jurisdictions as a valid form I.D. This also enables them to vote. Cities and states have no Federal authority to declare what form of I.D. a foreign national may carry in the U.S. Only the State Dept. and DHS have this authority. 

Madison warned of the consequences of this in No. 43: “May it not happen, in fine, that the minority of citizens may become a majority of persons, by the accession of alien residents… or of those whom the constitution of the state has not admitted to the right of suffrage?”

The Justice Department, which has the authority to protect Federal power against attempts by the states to usurp it, has not pushed back against this unconstitutional usurpation of Congressional authority. And President Obama, for the first time in U.S. history, has used the power of the Executive branch of the Federal government to brazenly defy Congressional authority and control immigration through his own edicts. In fact, President Obama’s actions can only be described as hostile to existing Federal law and the U.S. Constitution. He has not only refused to allow the Justice Department to enforce Federal law, he obstructs efforts by states to enforce existing law, such as when Arizona passed SB1070 and he ordered the Justice Department. to stop them from enforcing U.S. Immigration law. 

Every U.S. Department of Justice employee takes an oath to enforce the laws of the United States yet it is all too easy to cite many instances where they have refused to do so. And as President Obama shows every day, refusing to enforce existing law or follow the Constitution has the effect of rewriting Federal laws and amending the Constitution without going through proper Constitutionally mandated procedures. 

In fact, reviewing the illegal measures big city mayors have taken to enable and promote illegal immigration may reveal that President Obama’s strategy of seizing Congressional power and rewriting Federal laws may have been pioneered by the actions of these big city Democratic mayors.