Arizona: The Tenth Amendment Fence

Arizona: The Tenth Amendment Fence
Arizona has got to do what it's Federal Government won't do, secure its border with Mexico. The State of Arizona is building a fence along its border with Mexico. The State government has authorized the public raising of funds to build a fence and a website is set up for the Fence-A-Thon.

The donations are pouring in to help the State defend itself, which under the Tenth Amendment it has a right to do. Only the Federal Government can make treaties or conduct affairs of State under the US Constitution. But the obligation to protect the citizens of a state is a concurrent power under the Constitution, and an obligation of each state of the union in their state constitutions.

All 50 US states defend themselves each day. Each state has state, county, and local law enforcement departments and officers. Each state maintains a branch of the National Guard in its various forms. States have various entities charged with investigation of waste, fraud, and abuse. States maintain prisons and jails to house the convicted criminal population and protect society from them. So if a state needs to build a fence along a border that is both a national, international, and state border what can it do? Arizona cannot conduct foreign affairs with the Mexican Government because that is the Federal Government's responsibility. Arizona can have law enforcement near the border, but only to enforce state law inside of Arizona. National Guard can be used, but this resource is limited because the Federal Government can supersede state government's in certain situations. Arizona is using all the legal methods it can.

The Constitution though does not prevent a state from building a fence along any of its borders if it is to secure the State for Constitutional reasons. Arizona cannot prevent its own citizens from leaving or returning or American citizens from out of state from coming. It cannot use a fence to regulate interstate commerce as this is a Congressional power. However, there is nothing in the Constitution that would prevent a state from erecting one for the common defense of her residents.

Only the National Government can conduct war and national defense, but a state can conduct internal defense like that mentioned above. A fence therefore could be justified along the Arizona border with Mexico because the state has a common interest in not allowing illegal immigrants from Mexico and other places around the globe in. So long as the fence does not interfere with Federal Powers, Arizona can do what it needs to.

And it is understood that if the Federal Government will not enforce national law, then state law must be enforced, because federal authorities are not upholding a law and therefore precedence alone cannot reign where federal and state law may conflict. Only if both laws are in true conflict with each other in enforcement can the Preeminence Clause kick in. The laws are not in conflict if the superior party is not enforcing or under enforcing its obligation. The State then must exercises sovereign over the area of concern.

If Mexico complains, Arizona cannot constitutionally respond to Mexican authorities officially as that is the job of the President and Congress. And if a state is constructing a fence legally where it can along its border to prevent illegal international traffic, the federal government cannot preempt the state from action, though it may try.

And if federal authorities insist on inaction on the state's part, but do nothing for their legal part, the relationship defaults again to state discretion until the National Government enforces the law. The same goes with the Federal relationship to the people. If the people of a state want to defend it or are obliged to defend it, themselves, and property, the federal government cannot preempt the citizen from self protection. Self protection may involve using arms, fleeing to a safer place, calling upon state or federal government for redress of grievances, or forming a militia for common defense.

So I wait to see what the Obama Administration will do if private land owners and state lands have fencing on them? Make them tear it down? If a court orders them torn down then wouldn't the federal government have to declare eminent domain and compensate the state or property owner for fair market value for the condemning of said fence? What about civil disobedience? Yes how does a government make millions of its citizens obey if they refuse? Put them all in gulags? Turn the military loose? Very difficult to enforce when one party to a contract tries to supersede its authority over the other.

So build your fence Arizona, guard it with whatever means necessary, and set an example for the rest of the nation. Immigrants are welcome legally, illegally they are not. If they want to come here on an emergency basis, they can apply for refugee status, which most illegals from Mexico and Latin America do not.

And what if the Mexican government comes into Arizona illegally to attempt to forcibly stop the fence from being built. The state must defend its citizens from enemies both foreign and domestic. And other states nearby will be willing to help, or at least their citizens will. When foreign nationals invade Arizona, they invade my nation, even though I live in another state and many foreign nationals are in my state illegally. Being good is not good enough. If you are not here by legal means you occupy American soil illegally and therefore are subject to federal and state laws where they apply.