James Pfister: State sovereignty and illegal immigration

In our system of federalism, States have sovereignty, or the power to govern — how much power is the issue in the current case of Texas defending itself against illegal immigration. As Chief Justice John Marshall stated in the seminal McCulloch v. Maryland (1819), “[t]he constitution of our country, in its most interesting and vital parts, is to be considered.”

The federal government’s power over immigration is not an enumerated power (the naturalization clause is something different) but is an inherent power of a sovereign nation under international law. It is supreme over the states under the Supremacy Clause. Thus, states cannot act regarding immigration matters contrary to federal law.

The question is whether states can act under their sovereignty to protect their territory and people consistent with federal law, especially where the federal government fails to protect them.

We started as a nation with sovereign states. The drafters of the Declaration of Independence referred to themselves as “Free and Independent States.” The Articles of Confederation, our first constitution, stated in Article II: “Each State retains its sovereignty” except for those powers “expressly delegated” to Congress. Our current Constitution, theoretically created by “[w]e the people of the United States,” provides for limits on States in Article I, Section 10, and in the 10th Amendment states: “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States …” How far does this sovereignty go in protecting a State from illegal immigration?

Texas argues that it can protect itself from an invasion of migrants under the self-defense provision, Article I, Section 10, Clause 3: no State shall “… engage in War, unless actually invaded or in such imminent danger as will not admit of delay.” A similar provision in the Articles of Confederation specified “enemies” or “Indians” “… till … Congress … can be consulted.” Both versions seem to require warfare or violent threat, as distinguished from illegal immigrants, but the latter were not a threat in those days. Perhaps, the general term “invasion” can be stretched to include illegal immigrants, the current threat.

The key precedent is Arizona v. United States (2012), majority opinion by Justice Anthony Kennedy, against an Arizona law. There were dissenting opinions, including one by the late Antonin Scalia. Justices Clarence Thomas and Samuel Alito, currently on the court, also had dissenting comments (Alito concurred in part). With a more conservative court today, change may be brewing toward more state sovereignty.

Kennedy’s opinion emphasized foreign policy’s connection to immigration. The United States should speak with one voice, not 50 state voices. The federal government requires “discretion” in the enforcement of immigration law given its close connection to the vicissitudes of foreign policy.

Also, according to Kennedy, State law is preempted when Congress has occupied the field with a comprehensive policy: “… Arizona law would interfere with the careful balance struck by Congress …” State law is also preempted when it conflicts with federal law under the Supremacy Clause. But states retain sovereignty when acting consistently with federal law: “[i]n preemption analysis, courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress’.” (Kennedy citing Rice v. Santa Fe Elevator, 1947). But a state “may not pursue policies that undermine federal law.”

Scalia dissented. He defined the United States as a union of sovereign states. The “defining characteristic of sovereignty” is the “power to exclude from the sovereign’s territory people who have no right to be there.” He would recognize Congress’s power to determine who has a right to be in the country, but states have an “inherent power to protect their territory.” He wrote of the human realities: invasion of property, strain on social services, putting lives in jeopardy. Scalia concluded: “Arizona has moved to protect its sovereignty – not in contradiction of federal law, but in compliance with it.” This is within the power of a sovereign state, he wrote.

John Marshall stated in McCulloch that the question of the line between Federal and State power “… is perpetually arising, and will probably continue to arise, as long as our system shall exist.” How far does state sovereignty go? An important Supreme Court decision is on the horizon.

— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Holland Sentinel: James Pfister: State sovereignty and illegal immigration