• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Federalism Guarantees States Key Role in Controlling Immigration

    Critics of state and local government action on immigration fail to keep in mind one simple but critical point: The states have these rights.

    It is preposterous to take the position that, short of federal action or the commission of a crime, governors and mayors are constitutionally powerless to deal with illegal immigrants within their states and cities. The argument that state and local governments must incur enormous fiscal and societal costs, asserting that all aspects of immigration (legal or illegal) are entirely the purview of the federal government, is constitutionally suspect.

    The Ninth and Tenth Amendments firmly established the federalist system of government by first stating that the rights contained in the Bill of Rights should “not be construed to deny or disparage others retained by the people” and adding the corollary limiting provision that “powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.”

    As James Madison noted in The Federalist Papers, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States.”

    As the U.S. Supreme Court found more than 100 years ago in Manigault v. Springs, 199 U.S. 473, 480 (1905), state and local police power is “an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people.” This decision followed Sturges v. Crowninshield, 17 U.S. 122, 193 (1819), in which the Supreme Court found that those sovereign powers “proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before.” More recently, as examples of state and local government powers regarding illegal immigration, the Supreme Court has upheld state action in employment (Arizona) and voter identification (Georgia and Indiana).

    Alabama’s new law is sweeping only in the sense that it encompasses many laws passed in other states in one bill (E-verify, voter identification, benefits, immigration status, etc.). Most of the provisions are consistent with positions upheld in court or not subject to legal challenges.

    The big issue, of course, is the legal presence inquiry. Alabama grants a presumption of legality to any person who can produce one of several valid identification forms, which means only those individuals who cannot produce what any reasonable person would carry with them will be subject to a federal inquiry regarding their immigration status. The law also prohibits using illegal factors (race, national origin) as a basis for a legal presence inquiry. The way Alabama wrote the law, however, should keep it within the state’s traditional police powers.

    Alabama now joins Georgia, Utah, and Arizona among those states exercising their Tenth Amendment rights. Many other states are considering similar action.

    Posted in First Principles [slideshow_deploy]

    7 Responses to Federalism Guarantees States Key Role in Controlling Immigration

    1. Joseph says:

      I am all for these state laws, carefully written to conform to the U,S, Constitution, in enforcing the states' rights to protect their citizens from the enormous financial and social consequences of rampant illegal immigration. I hope more states take similar action. I also would like to see a number of states sue the U.S. Department of Justice for selective enforcement/nonenforcement of U.S. laws regarding illegal immigration.

    2. Brittanicus says:

      The midterm election proved that the people are mad and sick of supporting illegal aliens who are flocking to this nation. The TEA PARTY is rising at a phenomenal rate, with thousands signing up at the national and local websites. We have seen the inability for the Obama's mob, to slide through executive orders not to deport certain groups of people. We keep sending troops abroad, but the protection of America's people; specifically in Border States that remain unprotected. The TEA PARTY will exceed any previous administration in stopping the self-destruction of America’s society. The 1986 Simpson/ Mazzoli will be enforced and will impose the mandated E-Verify, Secure Communities to the letter of the law. Much harsher sanctions against incorrigible business that hire cheap labor will be severely punished the border with military interdiction along with the border agents.

      All presidential hopefuls who fall below a B+ plus rating by NumbersUSA, will be ignored and fall out of favor along with the elected carrion that run the cities and communities nationwide. Already D. Huntsman has been designated by NumbersUSA as a bad contender. The Tea Party is an open book of all races, which came to this country through the front gates. ARE AMERICANS PREPARED TO HAVE THEIR SLIPPING WAGES, BEING COMMANDEERED FOR YEARS TO COME, PAYING FOR PEOPLE WHO BROKE OUR IMMIGRATION LAWS?

      The 1986 Amnesty turned into an absolute travesty of our laws, with paramount fraud and millions not processed correctly. On Wednesday U.S. Sens. Robert Menendez, D-N.J., Harry Reid, D-Nev., Patrick Leahy, D-Vt., Dick Durbin, D-Ill., Chuck Schumer, D-N.Y., John Kerry, D-Mass., and Kirsten Gillibrand, D-N.Y., reintroduced a comprehensive immigration reform bill. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented immigrants present in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.

      As far as I’m concerned, this will end up another big payout slapped on taxpayers. Heritage Foundation has already stated that taxpayers are looking at another mind boggling bill of $2.6 Trillion dollars. If you don’t believe it, then go and view the statistics in black and white at the heritage website. If you feel that another 20 million plus newcomers is alright on the US treasury accounting sheet, then will have even higher taxes slipping from our grasp. All its going to accomplish is millions more foreigners encouraged by our open border politicians, to keep funneling in a growing overpopulated America millions more annually, that the politicians fail to tell us about?

    3. SCOTT D' says:

      BULL! THE CONGRESS OF OUR ONCE GREAT NATION CREATES FOREIGN POLICY IN THE INTERESTS OF THE HIGHEST BIDDERS. LOBBISTS REPRESENTING FOREIGN NATIONS CONTROL THE FOREIGN POLICY OF OUR GOVERNMENT FOR THEIR SELF INTERESTS AT GREAT COSTS IN AMERICAN LIVES AND OUR TAXES. OUR CONGRESS DOES SO WITH THE PRETEXT THAT IT IS IN US INTERESTS. OUR INVOLVEMENT IN IRAQ AND THE MIDDLE EAST ET AL IS A GLARING EXAMPLE OF FOREIGN CONTROL OF OUR FOREIGN POLICY. HERITAGE, MY FOOT!

    4. MarkEidel says:

      I believe Rhode Island was already enforcing immigration law before any of the other states mentioned in the article. Perhaps it gets a pass from the multiculturalists because it's is otherwise such a "Liberal" state.

    5. George Colgrove, VA says:

      It could be that after states take this responsibility back and after the failed "experiment" of having federal workers do the screening at airports is ended in closure, we can finally get on with our lives without the cumbersome pointless DHS that is sucking our freedoms away. Right now the DHS is sending guns down to Mexico, wh in turn is sending troops back into America. Who are these federal workers supporting anyway? I am glad to see that at least one federal worker has a conscience. That one border agent leaked this practice and now we know. It is one thing to have a president who is working to actively destroy this country – it is scary that he has 2.7 million drones in the federal worker ranks who will comply so willingly. Get rid of DHS for homeland security sake – we will be a safer nation for doing so.

    6. Pingback: Why Does America Welcome Immigrants?

    7. Pingback: Minority Twice » Blog Archive » Why Does America Welcome Immigrants?

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×