On March 27, 2010, Arizona rancher Robert Krentz was shot on his own land. Police had precious little evidence aside from a set of footprints in the dust which led from Mr. Krentz’s ranch to the Mexican border. The footprints told a very simple story – Mr. Krentz was senselessly murdered by a Mexican national who illegally crossed the porous border into Mexico. In partial reaction to this tragedy, on April 13, 2010, the Arizona legislature passed the Support our Law Enforcement and Safe Neighborhoods Act, which is renowned as one of the toughest immigration statutes in the nation. The law – passed in bipartisan fashion and refreshingly demonstrating greater loyalty to state than to party – requires Arizona police to determine a person’s immigration status if they have reasonable suspicion that the person is an illegal alien. Moreover, persons caught in Arizona illegally face jail terms and fines. Arizona’s rationale for the statute is simple – they simply decided that, if the Federal government refuses to act to protect Arizona’s border with Mexico, Arizona will.
Predictably, people across the country are up in arms about this statute. Like a swarm of termites, many people have crawled out of the woodwork to condemn Arizona’s law as unconstitutional. The American Civil Liberties Union (which is the epitome of organized hypocrisy) is typical, claiming that the Arizona law violates the Supremacy Clause of the Constitution because the Constitution grants exclusive authority over immigration to the Federal government. Does this constitutional argument hold any water?
Let’s start with the basics. The Supremacy Clause of Article VI provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the contrary not withstanding.
The key provision is emphasized – for the Supremacy Clause to “trump” a state law, it has to be a state law that is contrary to the “supreme Law of the Land;” i.e. the Constitution, a Constitutional Federal statute, or a Federal treaty. Is the Arizona law in conflict with Federal immigration laws? Certainly not to the extent that the Arizona law simply takes what is already a Federal crime – being in the country illegally – and makes it a state crime as well. Nor does the fact that Arizona’s law allows for the imprisonment and fining of illegal aliens put it in conflict with Federal immigration law. The fact that Federal law generally provides for the deportation of illegal aliens does not prohibit states from increasing the penalties. If the Federal government abolished the death penalty for murder, that would not prevent states from continuing to use it. Similarly, the fact that a state may have harsher drug penalties than the Federal government does not put the two statutes in conflict. Quite simply, without a bona fide conflict between the Arizona law and federal statutes, the Supremacy Clause really has no application.
The next argument raised is that immigration is an area of “exclusive” federal control, yet the Constitution itself never mentions the word “immigration.” Congress is vested with power only “to establish a uniform Rule of Naturalization.” Article I, Section 8. Naturalization, of course, refers to the process by which an alien becomes a citizen. It does not refer to the process by which an alien gets here in the first place. Thomas Jefferson noted that the Constitution does not grant any power to the Federal government regarding immigration:
[A]lien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved, to the states, respectively, or to the people,” the act of the Congress of the United States, passed the 22d day of June, 1798, entitled “An Act concerning Aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.
Jefferson quotes an old friend in this passage – the 10th Amendment. Because the Constitution granted no power over immigration to the Federal government, such power belongs to the states by virtue of the 10th Amendment.
But what if the states find it necessary to act – for the protection of their own citizens – in areas where the Federal government has been delegated power to act but refuses to do so? Such a scenario is contemplated by the Constitution, demonstrating that even if (as the Supreme Court erroneously held in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)) the Naturalization power encompasses power to regulate immigration, Arizona’s law is still Constitutional. Article I, Section 10 sets forth things that the states may not do. In part, it says this:
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.
Here, the states are prohibited from fighting their own wars, which is a power delegated to the Federal government. But states are permitted to engage in war when they have no choice because of the Federal government’s refusal or inability to act quickly enough. If Canada invaded Washington state, and the Federal government chose not to respond, the Constitution makes clear that Washington can respond on their own. Why can’t this analogy shield Arizona’s law? They are not being invaded in a traditional sense, but they have thousands upon thousands of illegal aliens entering yearly, stretching public services to the limit. They have a war among drug cartels occurring just over their border. They have illegal aliens gunning down defenseless citizens in broad daylight. Are you going to tell Arizonans that they are not in danger and that the Federal government is doing enough to protect them? Before you answer that question, answer this one: If I offered you a ranch 10 miles from the Arizona-Mexico border for a year, would you be comfortable taking your family to live there? If your answer is “no,” you have absolutely no right to criticize Arizona’s law.
The final “Constitutional” argument raised against the Arizona law is that it will encourage “racial profiling.” This argument gets short shrift because it deserves nothing more. Obviously, the people who raise this argument claim that the majority of people who are affected by the law will be Mexican or Latino. But the fact that the law will disproportionately affect them is not a function of unconstitutional “racism” – it’s a function of Arizona’s 350-mile long border with Mexico. Arizona doesn’t share a border with Japan or China or Canada or France or Egypt. Geography, not a predisposition for unfairness to Latinos, drives this effect. If you have a complaint, call Rand McNally, not Al Sharpton. To argue that the Arizona law encourages racial profiling is like arguing that the French, Belgians, Dutch and Russians engaged in racial profiling during the two World Wars because their war policies disproportionally harmed Germans.
Arizona has the same rights as any state in this country – the right to protect its citizens like Robert Krentz in circumstances where the federal government lacks either the power to do so or the fortitude to exercise that power. Arizonans clearly believe that the situation is so dire “as will not admit of delay.” If you’re willing to set up shop 10 or 20 miles from the Arizona-Mexico border with your family and you want to criticize, by all means go ahead. If not, then let people who actually face these problems do what they need to do to protect themselves.
Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006.
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