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Again with Immigration?

May 6, 2010

I was on (National) Fox News today.

Talk about beating a dead horse!

FOX wants me on again today to talk about the two Arizona immigration laws and why they/it poll(s) well. (Rasmussen failed to let people know there were two versions of the law–the first law which allowed racial profiling and random stops of law-abiding people was repealed by the second–and since most folks thought there was one version of the law, not two and Rasmussen didn’t even specify which law the poll was referring to, the poll is inherently flawed.)

One day soon, I hope to move on to the oil spill, financial reform, and a foiled terrorist plot in NYC. But here, briefly, are my thoughts on the subject:

Polls are all over the map.
– The vast majority of Americans don’t understand the two Arizona immigration laws.
– The vast majority of Americans don’t even know there were two laws and that the first one explicitly allowed racial profiling and random stops of law-abiding individuals.
– This same poll shows 2/3 of Americans to be sympathetic to illegal immigrants
– The vast majority of Americans believe laws should be followed and are probably unaware that the Arizona law goes beyond Federal Law and therefore is unconstitutional and likely never to be enforced.
– White Americans that don’t have friends that are Black or Latino probably don’t realize that police can–and often do–stop Blacks and Latinos on pretexts like jaywalking or a broken tail light. In fact, the Sheriff of Maricopa County (Phoenix), Arizona seems to be an expert in promoting just such pretextual stops.

Finally, there is a vast difference between having a vague idea on something you don’t know much about it because a computerized voice has asked you to choose option 1 and 2 — and being angry enough to boycott a State, march in the street, or force cowed legislators to back down on their originally racist bill. In sum, the poll doesn’t measure intensity of views. And that’s a big mistake.

Democrats have learned the hard way on gun control that intensity of views matter. The majority of Americans, for example, consistently support gun control, but a small minority really loves their guns. And that small minority are one-issue voters who might give vast money and support to a candidate who refuses to keep terrorists from buying guns even though more than 80% of Americans support a ban on terrorists buying guns. On that one issue, these strong-feeling gun-loving voters will make up their minds no matter what the candidate says on other things.

Similarly, many Hispanics are one-issue voters. They will oppose any candidate who supports racial profiling and stopping people for “driving while Latino” no matter what the candidate’s views are on any other issue. In contrast, most supporters of illegal immigration restrictions do not have that as their sole–or even primary–issue in the forefront of their minds. They care more about education, jobs, the economy, the environment, etc.

More sources:

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  • Mark May 21, 2010 3:31 pm

    Here’s a good article on federal pre-emption of state laws on immigration. The only time the state can act beyond federal law on immigration is where federal law has not yet been enacted in a specific area.

  • Mark Levine May 21, 2010 3:07 pm

    David and Theron, the United States Supreme Court has consistently held since the 19th century that immigration is, under the Constitution, exclusively within the province of the Federal Government. The Supreme Court has long cited not only the naturalization clause, but many other provisions in the Constitution as well, for this proposition.

    Perhaps the leading case in this matter is Hines v. Davidowitz, 312 US 52 (1941), which you can read here:

    Here’s part of the decision, which, interestingly, is not part that cites the Naturalization clause. (That’s later in the opinion, which I commend you to read and to show this author in the National Review, who, if he’s a constitutional authority on immigration, should have already read the opinion):

    “That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787,[9] and has since been given continuous recognition by this Court.[10] When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article VI of the Constitution provides that “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 notwithstanding.” The Federal Government, representing, as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. “For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.”[11] Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. ”

    As you can see, if FOX will allow me to debate another constitutional attorney or a constitutional law professor, he or she (no matter how conservative) would have to agree to the unconstitutionality of the Arizona statute as consistently construed by the Founders and the United States Supreme Court. It should not surprise you that Gallagher could not find a single constitutional scholar who disagreed with me.

    Please read the case. And if you’re intellectually honest, I would welcome a comment back from either of you conceding that I’m right regarding constitutional law.

    That doesn’t mean there is no hope for Arizona. Arizonans can petition the federal government to change the law (the easy way, which I support). Or, if they really hate this provision the Founders put in the Constitution, they can move to amend it to allow each state a hodgepodge of immigration laws. In that way, an immigrant could be illegal in Arizona and legal in New Mexico and partially legal in Utah.

    I think amending the Constitution in this respect would be a terrible idea. I think the Founders were wise in requiring one uniform rule across the states, so that our “Americanness” does not change as we go from state to state.

    Thanks for writing.

  • Theron May 21, 2010 2:41 pm

    Mark, on Fox news today you cited article 1 section 8 of the constitution shall be uniform throughout the United States To establish an uniform Rule of Naturalization. Tell me what does the laws of naturalization have to do with the laws of deporting illegals, oh yeah nothing. One has to do with a person becoming a citizen and the other has to do with the punishment of someone who crossed our borders illegally. So that poses the question are you stupid or are you trying to lie to stupid people?

  • David May 21, 2010 1:56 pm

    Levine, you used the Article 1 section 8 of the constitution as your argument that the Arizona law is unconstitutional. Andrew McCarthy, the former Assistant United States Attorney that prosecuted the 1993 World Trade Bombing disagrees with you. He writes in a post that appeared on National Review concerting this Article 1 argument:

    Dan, that’s quite a remarkable proposal. Let’s put aside the commonsense fact that the government will never be able to effect a meaningful reduction of the illegal immigrant population if it signals to illegals in any “comprehensive” proposal that, at the end of the rainbow (whether it is 12 months, two years, ten years, or whatever duration of stepped up enforcement), an effort will be made to legitimize the presence of those who remain here. I want to focus instead on the presumptuousness of telling states and municipalities that they are “prohibited from enacting their own rules and penalties relating to immigration” on the grounds that doing so would undermine federal policy.

    The Constitution does not grant the federal government a monopoly on making immigration policy. Article I vests the Congress with the power “to establish a uniform Rule of Naturalization,” period. The Fourteenth Amendment bars the states from abridging the privileges or immunities of citizens of the United States. A “person” (whether an American citizen or not) must receive due process of law before his fundamental rights are infringed — but that just means the states have to afford the process that is due under the circumstances, not that they can be prohibited from acting. Similarly, no person may be denied equal protection of the law by a state, but that simply means that people who are similarly situated must receive equal treatment — it does not require states to treat dissimilar people or things as if they were the same, and though the Left is in denial on this, citizens and non-citizens are not the same.

    In fact, if there is any potential equal protection violation, it is in the Reid/Schumer/Martinez proposal. The proposal purports to bar future state laws but leaves those already enacted unaffected. Why on earth should State A be forbidden to do something lawful that has already been done by State B?

    In any event, there is no enumerated federal power in the Constitution to bar the states from enacting laws regarding the treatment of immigrants. The states may not pass their own naturalization rules, and they cannot (absent due process) deprive an immigrant (legal or not) of any right he may have under the Constitution — e.g., the Supreme Court has held that illegal aliens have Fourth Amendment protection, and that the warrant requirement is “incorporated” against the states, so a state could not lawfully permit police to search the homes of illegal aliens without first obtaining warrants. But apart from these clear no-nos, the federal government has no authority to tell states they cannot pass laws relating to immigration. Such authority was not delegated to the federal government by the Constitution, nor does the Constitution prohibit the states from all regulation of immigration, so under the Tenth Amendment, the states retain this power. And as Dan points out, state regulations will often have the effect of reinforcing and strengthening federal law, not undermining it.

  • Jose May 13, 2010 1:45 pm

    We welcome LEGAL Immigrants. Illegal immigrants are invading our country, KILLING American Citizens and don’t respect Americans or our laws.

    They invaded USA and according to Mexican Law Article 30 and Article 67 are subject to showing identification anytime the police or an official ask for it. It also states they should be honest…So they break American Laws and expect to get away with calling Legal Americans racist. Tell that to all the families that lost loved ones and innocent Americans died.