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Arizona, Illegals, and the Rights of States

The states rediscover their forgotten powers.

By Petrarch  |  April 26, 2010

As generally seems to happen when things don't go his way, Mr. Obama got all huffy last week when Arizona passed a law making clear what should be obvious: illegal immigrants are, um, illegal, and police should arrest them as they arrest other lawbreakers.  The Wall Street Journal reports:

Mr. Obama said he instructed the Justice Department to "examine the civil rights and other implications" of the new law. [emphasis added]

This is not a civil rights issue.  Illegal aliens have human rights, of course, but, because they are not citizens, they have no civil rights.

Justice officials said they were considering their options, and it wasn't clear Friday what they might do.

Doubtless not; it's hard to see how anyone could successfully argue before the Supreme Court, where the question would inevitably wind up, that enforcing existing laws is illegal.  Arizona has simply gotten fed up with twenty years of Federal negligence about what should be its very first priority, that of defending our borders, and decided simply to do the job with its own local police.

However, in so doing, Arizona is underscoring a long-running question strung all throughout American history: the question of states' rights.

No, Not Just For Slavery

In the years following the Civil War, the concept of states' rights has gotten an understandably bad reputation because the South used that argument as justification for the evil practice of slavery.  Obviously, that was wrong.

However, just because the slave states used a wrong reason for an evil practice does not mean that they had no point at all.  On the contrary: our Constitution specifically says that the states and the people hold all power, and the Federal government only has specific, limited powers delegated thereto:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Prior to the establishment of the Constitution, the United States operated under the Articles of Confederation, and before that, in the somewhat informal cooperative of the Continental Congress.  Here in modern America, we've gotten used to thinking of "states" as something less than independent nations, but under the rules of the time, that's exactly what they were.

Independent states can, of course, voluntarily limit their powers via international agreements through treaties or other agreements, which is what the Constitution effectively was.  Where the Constitution grants power to the Federal government, the states cannot override a law passed by Congress.

This, however, is not what Arizona is doing.  In fact, it's doing exactly the opposite: the new Arizona law simply allows local police to enforce the immigration laws already on the books.

Arizona isn't declaring people to be illegals who Congress has said are legally allowed to be here.  Everyone arrested and deported by the Arizona authorities will be people who the Federal government should have prevented from coming in at the border, if they were doing their job, or arrested already if they weren't so busy violating our rights in other areas.

The state of Arizona is simply claiming its right to enforce existing laws.  If we were invaded by the Russians, would American cops stand around waiting for the Army, national defense being a power delegated to the Feds?  Of course not - they'd start shooting.  How is a slow-moving invasion by illegal immigrants any different?

Mr. Obama now finds himself in a sticky situation.  The open-borders advocates on the Left are already angry that he hasn't passed a blanket amnesty yet; he can't very well just ignore Arizona's new law.

On the other hand, trying to stop Arizona by force of law won't work either.  If a court found Arizona's efforts unlawful, the decision would certainly be appealed up the line, infuriating most Americans every step of the way.  If, on the other hand, the court found Arizona well within its rights - the most likely outcome - the gates would be wide open for other states to do the same thing, expelling their own illegals too.

Not only would this deprive the Democratic Party of a rich potential source of new votes, it would unveil for all to see the fundamental principle deadly to statists: the Federal government is not all powerful and isn't supposed to be.  A state which can police its own borders is a state which can regulate its own health care system, manufacture its own guns, or do a whole host of other things that our states have gotten out of the habit of doing - but which they could, if they wished.

Governors, like any other politician, do enjoy wielding more power rather than less.  That's the way the Founding Fathers designed our nation to work; it's time our leaders remembered it.