US Constitution’s wiggle room could benefit Arizona law

Federal judge Susan Bolton, as anticipated, issued a preliminary injunction on Wednesday, prohibiting parts of Arizona Senate Bill 1070 from going into effect. The parts she blocked involved i.d. issues and immigration status issues.

But an unbiased reading of Article I, Sect. 10 to the US Constitution, in my opinion, offers wiggle room.

The judge didn’t block all of the law, just parts of it. The Arizona Republic has a clear analysis of the parts of the immigration law she did block, including “The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion they're in the country illegally.”

The border security crisis is certainly real for Arizona. CBS News cited a Department of Homeland Security Report that said by 2009, the number of illegal aliens in Arizona had dropped to 460,000. That’s a guesstimate, of course, because you can’t accurately document the undocumentable.

Although the Constitution technically defines citizenship and citizens’ privileges, and limits each state’s power regarding laws that might ‘abridge’ those privileges, a careful reader will see wiggle room on the matter of immigration.

Start with the third paragraph of Article I, Sect. 10: “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.”

Facing the reality of having 460,000 undocumented aliens in a state means taking into account crime, impact on medical institutions, impact on schools, impact on the socio-cultural makeup of communities and what is certainly a serious impact on budgets. National security is also an issue. Therefore a case might be made, since the numbers are so astronomical and there is no way to identify these individuals, that ‘eminent Danger’ exists. And concurrently, a de facto invasion.

There’s another reference in the Constitution, one I don’t think anyone has talked about yet—Amendment 11: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Illegal aliens who advocated via groups suing Arizona are technically subjects of a foreign state. And if a group in the suit represents illegal aliens, that group represents a foreign state. Technically.

And technically, our federal government teamed up with a foreign state in a suit against a U.S. state.

There’s  also that tricky Tenth Amendment, acknowledging states’ rights. Had Arizona proceeded on the basis of Art. I, Sect. 10, and used state law enforcement only, it strikes me the state could come up with a policy. I also wondered if Arizona and another state had formed a compact if that would have been a good place to start because the imminent danger is from a foreign nation. Technically. For proof, you can watch the video of Mexico’s president criticizing the U.S. on the floor of Congress for what amounts to trying to enforce our laws.

It is challenging to think about immigration apart from the politics.

On one side you have families who ignored the option to apply for legal status or families who want to bring additional family members here. You also have employers who rely on cheap labor, attorneys who make money on immigration procedures, and trial attorneys (they advertise heavily in Spanish language publications for accident and work injury victims). On that same side you have a political Party eager to grow  a dedicated voter registration list largely based on an uneducated group of workers that will need to partly rely on the federal government. Also eager for an open border policy and amnesty are the drug cartels, money launderers and human traffickers.

On the other side of the fence you have citizens who have seen job opportunities and wages decline even as taxes and medical costs increase. You also have people who fear abrupt cultural changes. There are others who fear the crime and the stress on community resources as is the case in Florida where there is not enough decent housing for the poor who are citizens or documented immigrants. Nor are there enough doctors—general family practitioners are fleeing government programs for the poor because they can’t afford to render them services.

Based on U.S. Census Bureau figures, we know that in 2008, 53 percent of all households headed by an immigrant (legal or illegal) with one or more children under age 18 used at least one welfare program, compared to 36 percent for native households with children.

Congress is talking about cutting Medicare. Yet Congress will have to find a way to pay for the current approach to immigration and plan on increases because if Democrats get the amnesty package they are seeking, based on campaign promises, the population will increase. It always has when amnesty was granted in the past.

Regardless of one’s feelings about Arizona’s situation, most of us are in agreement that federal laws are not being enforced. Politicians say our immigration system is broken. It isn’t. It simply can’t handle the volume. But no one talks about whether we want to handle that volume any faster—do we actually owe it to people to accommodate unlimited numbers who decide they want to come here? And what, really, can we afford, considering the dire straits we appear to be in economically? Can we legitimately  increase the taxpayers’ burden?

There's another parallel as well. If illegal aliens can sue the U.S. to block law enforcement, can U.S. citizens sue the countries where these individuals travel from?

The US Constitution sets deliberate limits, but it also provides wiggle room for states’ rights. At the moment the federal government is breaking its own laws. But that’s nothing new and the practice certainly isn’t confined to immigration.