A report analyzing America’s legislative gridlock on immigration under the Obama administration shows that the states originally controlled foreign nationals’ access to their territory, a policy that worked well for the nation in its first century.
It was when Washington stuck its fingers into the pie that the circumstances leading to today’s gridlock developed.
The analysis was done by Herb Titus, who taught constitutional law for 26 years and finished his academic career as dean of Regent Law School, and Bill Olson, who served in three positions in the Reagan administration.
They now practice constitutional law at William J. Olson, P.C.
The legal policy paper was produced as part of a series on contemporary legal issues by the United States Justice Foundation.
Titled “The Constitutional Case for an Interstate Border Compact,” it argues that states have the right to reach agreements among themselves to address previously uncontrolled illegal invasion of their territories, even without the permission of Congress.
“Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a ‘uniform rule of naturalization,’ but, contrary to general belief, there is no enumerated power granting Congress authority to regulate immigration.
Nor does Article 2 of the Constitution confer upon the president any express authority over immigration.
“As a result, for the first 100 years of our history, it was the individual states that controlled immigration of foreign nationals into their states,” the report explains. “Then gradually, the branches of the federal government began to assert themselves into immigration policy, which has ultimately led to the present gridlock, with no coherent policy to prevent illegal immigrants from flooding into our country.”
As a result of President Obama’s use of executive actions to grant amnesty to illegal aliens – a move struck by the courts – and his insistence states have no voice in immigration, “all states have suffered financially” and “the very sovereignty of the United States as a nation is at stake,” Titus and Olson contend.
But the remedy is in the Constitution, the policy paper argues.
“Article 1, Section 10 of the Constitution allows states to enter into agreements, known as Interstate Compacts, with the consent of Congress,” it points out.
Compacts already are widely used for allocating waters of the rivers in the West, where multiple states claim rights to use waters from the Colorado River, the North Platte and other rivers.
“However, the Supreme Court has ruled that congressional consent ‘is necessary only in the case of a compact that enhances the political power of the member states in relation to the federal government.’ In the case of border security, the states are only exercising their inherent powers and their powers under the 10th and 14th Amendments to the Constitution, not contravening any legitimate federal powers,” the paper explains.
“After extensive legal research done by the attorneys at the United States Justice Foundation, we have concluded that congressional consent is not required by the Constitution for an Interstate Compact on Border Security such as the one recently proposed by State Sen. Bob Hall of Texas.”
Hall’s plan was prompted by “the refusal of the federal government to protect our national borders,” to which he attributes the “unnecessary loss of thousands of lives and millions of dollars in property.” He suggests a “Border Security Interstate Compact.”
He explained in an online statement, “It is time for the Texas Legislature to accept its responsibility of protecting Texas’ citizens from the illegal alien-criminals and pass SB 1252, which will give the governor the authority to develop and enter into a Border Security Interstate Compact.”
Cited as support for the move are the $12.1 billion costs paid by Texans in 2013 alone for the needs of illegal aliens.
The policy paper explains that while the Department of Homeland Security claimed in 2011 there were “11.5 [million] illegal aliens in the United States … a study a decade earlier by Bear Sterns had put the estimate much higher – at 20 million.”
“Last year, Mexico’s former ambassador estimated that in 2015 there were 30 million illegal aliens in the United States.”
“What is known for certain is that the federal government has failed to protect the nation’s borders and solve the problem of illegal immigration. Congress, whether led by Democrats or Republicans, is deeply divided,” the paper states.
While the authors of the Constitution set up a system that would occasionally produce gridlock – through their division of powers and insistence that Washington’s power be limited, and the federal courts have simply ruled over and over for more authority for Washington, “no power that has been taken from the states is as significant to the lives of each American as the state’s role in regulating immigration.”
The Texas plan was approved by the state Senate, but it stalled in the House. The paper argues Texas can move forward with its proposal and not even address whether Congress needs to give its approval.
It explains that the Constitution gives the national government power over naturalization “but not immigration.”
That fact was acknowledged in U.S. Term Limits v. Thornton, in which U.S. Supreme Court Justice Anthony Kennedy acknowledged “the framers split the atom of sovereignty.”
“It has only been since the late 19th and 20th centuries that the federal government has entered and come to dominate the field on the assumption that the enumerated power to establish a uniform rule of naturalization subsumed the power to regulate immigration,” the paper states. “But, as Justice Scalia has demonstrated, the federal government’s power over immigration has no necessary connection to the Naturalization Clause; rather, such power ‘is an inherent attribute of sovereignty no less for the United States than for the states.””
“Indeed, under the Fourteenth Amendment, constitutional citizenship in both sovereign entities presupposes border integrity and security. Thus, United States citizenship is vested on birth within the geographic area of the nation, and state citizenship is vested upon residency within the geographic [area] of a particular state.
“If the geographic borders of the United States are disregarded or left undefended, then both the United States and the 50 individual states have lost the defining characteristic of sovereignty, undermining their very existence as a nation and as states, respectively.”
Over the years, states have spent billions of dollars on illegal aliens because of the failure to adhere to what the framers intended, the contends.
So, now, California households now spent $2,370 each yearly for benefits for illegal aliens, the paper notes.
States’ rights previously were addressed by the Supreme Court over taxation.
“As a sovereign, a state has the inherent power to tax, subject only to limits expressed in the Constitution. So also, as a sovereign, a state ‘has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.'”
The fact is that states are not “wards of the federal government” but instead are “independent sovereign political entities.”
Even the U.S. Supreme Court has acknowledged the argument, stating in one 20th century case: “The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual states with a view to increasing harmony within the federalism created by the Constitution.”
Not only do states “have the inherent right” to refuse entry to illegal aliens, “they also have the power to remove such persons found in their states, even without sanction of the national government.”
The legitimacy of a compact seems beyond question, the paper states. Whether or not it would need congressional approval would rest solely on whether it increases the state power over federal operations and the proposal would not “authorize the member states to exercise any powers they could not exercise in [the compact’s] absence.”