Federalism Guarantees States Key Role in Controlling Immigration

By Matt Mayer

Critics of state and local government action on immigration fail to keep in mind one simple but critical point: The states have these rights.

It is preposterous to take the position that, short of federal action or the commission of a crime, governors and mayors are constitutionally powerless to deal with illegal immigrants within their states and cities. The argument that state and local governments must incur enormous fiscal and societal costs, asserting that all aspects of immigration (legal or illegal) are entirely the purview of the federal government, is constitutionally suspect.

The Ninth and Tenth Amendments firmly established the federalist system of government by first stating that the rights contained in the Bill of Rights should “not be construed to deny or disparage others retained by the people” and adding the corollary limiting provision that “powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.”

As James Madison noted in The Federalist Papers, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States.”

As the U.S. Supreme Court found more than 100 years ago in Manigault v. Springs, 199 U.S. 473, 480 (1905), state and local police power is “an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people.” This decision followed Sturges v. Crowninshield, 17 U.S. 122, 193 (1819), in which the Supreme Court found that those sovereign powers “proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before.” More recently, as examples of state and local government powers regarding illegal immigration, the Supreme Court has upheld state action in employment (Arizona) and voter identification (Georgia and Indiana).

Alabama’s new law is sweeping only in the sense that it encompasses many laws passed in other states in one bill (E-verify, voter identification, benefits, immigration status, etc.). Most of the provisions are consistent with positions upheld in court or not subject to legal challenges.

The big issue, of course, is the legal presence inquiry. Alabama grants a presumption of legality to any person who can produce one of several valid identification forms, which means only those individuals who cannot produce what any reasonable person would carry with them will be subject to a federal inquiry regarding their immigration status. The law also prohibits using illegal factors (race, national origin) as a basis for a legal presence inquiry. The way Alabama wrote the law, however, should keep it within the state’s traditional police powers.

Alabama now joins Georgia, Utah, and Arizona among those states exercising their Tenth Amendment rights. Many other states are considering similar action.