In the wake of Arizona's immigration law and "the list" of 1,300 alleged illegal immigrants, people in Utah and around the country are debating the ever-present issue of immigration at a fever pitch. For all the resulting discourse, however, it seems that nearly everybody has assumed that federal immigration law is proper.
This view is mistaken, although understandable. More than a century of precedent has led Americans to believe that the power to regulate and restrict immigration is a federal one. Time, however, does not confer authority; if an individual health care mandate is unconstitutional today, yet still implemented, the passage of 100 years does not make it right.
It is an interesting exercise to ask supporters of federal immigration law where the government derives its authority on this issue. The varying responses given are as numerous as those offered by the U.S. Supreme Court over the years. One would think that if such a power existed, we could at least agree on what text in the Constitution applies.
A common citation of constitutional authority is Congress' power to "establish a uniform rule of naturalization," though both a colonial-era definition of the word naturalization, as well as a litany of quotes from framers of the document in question, clarify that naturalization has only to do with the specific process that makes an alien a citizen. The stretching of naturalization to somehow encompass an individual's travel through and residence within the United States is without constitutional support.?
Some also point to Congress' power to repel invasions, arguing that the flood of immigrants crossing the border invade our country, use our resources, burden our social welfare programs and bring with them gang violence and drug warfare. However, this supposed invasion is no orchestrated campaign by a distinct group; Juan's peaceful and individual migration to America cannot reasonably be classified as being part of some coordinated effort to invade America.
James Madison argued in Federalist 43, in the Virginia Ratifying Convention, and in his Report of 1800 that the power to repel invasions only was meant for protection when a state was attacked by another state, or when the country was being subjected to a coordinated military strike. While some gang activity may possibly apply here, it is patently absurd to classify all migration as a legitimate and actual invasion.
Historically, the commerce clause was used to justify federal immigration law, but this dealt mainly with slavery or state-based migration taxes, and few would try to so twist this clause as to apply to the modern migration of individuals across our borders.
The last justification often used is a vague and boundless reference to the country's sovereignty, where it is argued that the country must "secure its borders" as a matter of "national security" and that the power to do so comes as an inherent right of being a sovereign nation. Not only are the states the sovereign entities in our federal republic, but the federal government cannot legitimately act unless it has been delegated the power to do so by the states under the U.S. Constitution.
Federal immigration laws have no constitutional authority, and unless an amendment to the Constitution is ratified by the states to delegate that power, the states should retake and affirm their power to manage immigration within their borders. Given that "illegal immigrants" have violated federal immigration laws, which exist without proper authority, the proper action for those who support and uphold the Constitution is to advocate amnesty for those whose only crime is noncompliance with these illegitimate laws.
Connor Boyack is the communications coordinator for the Utah County Campaign for Liberty.