What if our own federal government openly encourages caravans to flood the border states and saddles them with violent drug cartels, crime, social ills, hospitalizations, and the public cost of mass migration from across the border? Are the states completely at the mercy of the federal government’s refusal to defend the sovereignty of the whole union and that of the individual states, particularly those like Arizona and Texas at the border?
Shouting “Biden, Biden, go Biden!” migrants of various nationalities celebrated the inauguration of the new president of the United States, Joe Biden. “We are very happy with the new president”
Migrantes en Juárez celebran investidura de Biden https://t.co/sr1A99AmAj
— Todd Bensman (@BensmanTodd) January 22, 2021
This is essentially the question Justice Antonin Scalia asked Obama’s solicitor general during oral arguments in Arizona v. U.S., when the Obama administration began illegally granting amnesty to illegal aliens and preventing Arizona from enforcing the laws on the books. “What does sovereignty mean if it does not include the ability to defend your borders?“ Scalia asked, referring to Arizona’s right as an individual state to defend its own borders. “The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material,” said Scalia during litigation between the Obama administration and the state of Arizona.
This discussion is even more relevant today, as the Biden regime has de facto invited caravans to come for amnesty by suspending Trump’s asylum reforms and has now asked ICE to release some of the worst criminal aliens imaginable.
The Constitution is clear as to the responsibilities of the federal government and why we have one in the first place. The federal government exists not to impose more mask mandates and lockdowns on the people, but to protect their rights and security where states are inherently less capable of doing so effectively — namely, in repelling an invasion. Ironically, it is the one act of war a president can pursue without the consent of Congress, yet the invasion at our border is the only one we refuse to address. So where does that leave the states?
Scalia answered this question in his partial dissent in the 2012 Arizona case:
But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
Scalia rhetorically asked:
Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
He ended his dissent discussing Obama’s amnesty and Arizona’s response to it:
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
Scalia concluded, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”
The Constitution is not a suicide pact for the states, as Americans are treated like criminals and criminal aliens are treated like pristine citizens. If courts were able to rule in favor of states abrogating and criminalizing the enforcement of immigration law under Trump, it’s for states to enforce them while Biden is seeking to unilaterally nullify them.
As Scalia observed in the Arizona case, “The naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.”
What Scalia meant is that states can’t be more liberal than the federal government on immigration because that would violate the national sovereignty and the choice of the union of states to deny entry. This is exactly why our Founders assigned control over immigration policy to the federal government. They didn’t want states to artificially inflate their representation by flooding the entire federal union with undesirable aliens. Commenting on the power of Congress (as opposed to states) over immigration, Justice Joseph Story explained, “If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.”
While this was written in 1833, every word is speaking to liberals today in states like California that want to increase their representation at the expense of other states. Let’s not forget that once an alien is admitted to the union by one state, he is free to move around anywhere in the country. Thanks to California’s sanctuary policies, Americans all over the country must suffer.
Roger Sherman, among the greatest of all the Founders, noted during the House debate on the Naturalization Act of 1790 that “it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner” (emphasis added). Sherman was emphatic that federal control was designed to “guard against an improper mode of naturalization” and prevent individual states from flooding the country with immigrants based on “easier terms.”
James Madison, in a 1782 letter to Edmund Randolph, noted that a uniform rule of naturalization from a future federal government would cure the existing problem under the Confederation of “the intrusion of obnoxious aliens through other States.” Writing in Federalist #42, Madison elaborated that the federalized power over naturalization solved “a very serious embarrassment” and “defect” of the Articles of Confederation, whereby “certain descriptions of aliens, who had rendered themselves obnoxious” can force themselves on several states had they “acquired the character of citizens under the laws of another State.”
Thus, both the Constitution and the inherent right to sovereignty rooted in social compact theory dictates that federal control over immigration should primarily be in one direction: more restrictive than states would want, not less restrictive. Now, obviously, once the feds were given final say over immigration, the letter of the law dictates that states cannot prevent immigrants from settling within their borders where statute otherwise authorizes it. However, as Scalia noted, a state “has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition,” and in this case, “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.”
To that end, patriots would be wise to pressure every red state to institute a mandatory E-Verify law like the one Florida just implemented. These states must clamp down on tax fraud and identity theft and refuse to accept unaccompanied alien minors being resettled in their states.
In addition, the border states, which have their sovereignty literally violated by the caravans, smugglers, and cartels, have the right to deploy their own National Guard units to push back any invasion. Are Texas and Arizona at the mercy of Biden’s criminal disregard for the violent hordes of predominantly young males attempting to crash their borders like we saw in Guatemala last week?
Article I, § 10, cl. 3 (the Compact Clause) states:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The Constitution is clear that, all things equal, states shouldn’t engage in warfare with other countries. But all things are not equal in this case, and the Constitution made an exception for those times when states are invaded and in imminent danger.
Joseph Story in his commentary on the Compact Clause writes that while the prohibition on states making war is obviously necessary, it was “wisely guarded by exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union.”
Still, a state may be so situated, that it may become indispensable to possess military forces, to resist an expected invasion, or insurrection. The danger may be too imminent for delay; and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of Congress.
Haven’t the border states (the ones that still care) waited long enough, with too much delay?
Some might suggest that caravans coming north are obviously not part of a declared war. But if you look at the original language of Article IV’s guarantee clause protecting states from invasion, Madison originally drafted its language to be read as protecting against “foreign violence.” It’s clear that this was not necessarily referring to formal warfare with a nation-state, but repelling violent incursions from Indian tribes. If a state can’t protect against foreign violence, then what can a state do?
This past year, we have learned that states are evidently so powerful they can call an emergency and suspend our lives, liberty, and property under the guise of protecting hospitals. Perforce, those same states should be able to declare an emergency of illegal immigration (especially as they come over to use our hospitals) and do the job the federal government refuses to do.