Federal authority over immigration

Authority over immigration is federal. This is based on Constitutional powers as interpreted by the Supreme Court: naturalization (Article 1, Section 8, Clause 4), foreign commerce (A1, S8, C3) and sovereignty (various Constitutional principles including the necessary and proper clause [A1, S8, C18]).

There is an inherent sovereign power to regulate international affairs. It breaks legal doctrine and stretches credulity to argue that individual states should have power over international borders.

States can complement national laws, not substitute for them. Utah politicians have suggested various proposals to address undocumented aliens in the state. Some deal with enforcement while others deal with benefits. Federal law would preempt most, if not all, of these proposals.

State action would be costly, misguided and disruptive. Reform must be national. It should flow from good public policy not politics.

Henderson v. Mayor of the City of New York (Sup. Ct. 1875)

State restrictions on immigration infringe the federal power over foreign commerce.

The Chinese Exclusion Case 130 U.S. 581 (1889)

“In December, 1878, the convention which framed the present Constitution of California, being in session, took this subject up and memorialized Congress upon it, setting forth in substance that the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions, and praying Congress to take measures to prevent their further immigration.”

The power of exclusion of foreigners is an incident of sovereignty belonging to the government of the United States (paraphrased).

De Canas v. Bica 424 U.S. 351 (1976)

The power to regulate immigration is unquestionably a federal power though not every state enactment which deals with regulation is preempted by the constitutional power (paraphrased).

Fronteras inteligentes: DREAM for the future

Fronteras inteligentes: DREAM for the future

DREAM for the future

A story is told of a young man making a small fortune. He has a luxury car, a big home and a nice lifestyle. Listeners are struck by an apparent tone of dismay. One inquires. The storyteller responds, “The young man is making a small fortune out of a larger one.”

The Development, Relief and Education for Alien Minors Act (“DREAM Act”) would give conditional immigration status to undocumented immigrants who entered the U.S. before the age of 16, lived in the U.S. for 5 consecutive years, earned a U.S. high school diploma or its equivalent, are less than 35 years old at the time of enactment and are of good moral character

Qualifying people would have to register and within 6 years complete 2 years of higher education or military service. Those who satisfied the requirement could apply for legal permanent residence five and a half years after enactment of the DREAM Act. Those who did not satisfy the requirement would be disqualified.

Opposition to the DREAM Act generally centers on the inconsistency of providing a path to residence for the undocumented or on the military provision. To the first group, does it make sense to stand against undocumented youth of good moral character? To the second group, here are words from an undocumented student (“DREAMer”) that convinced me: “We, the DREAMers, want this for our brothers, our sisters and ourselves. Leaders need to do more to encourage people to stay in school so that the military route is less appealing.”

Beside arguments concerning law, logic, statistics, etc., the words of the DREAMers are plain and powerful:

“We are all humans and immigrants in this world.” –V

“Education opened our eyes without giving us any solution.” –L

“I worry every day about the possibility that ‘la migra (ICE)” will break up the life of my family.” –N

“I felt proud until I started feeling like a criminal by applying for a job, scholarships and financial aid.” –A

“I have become an American in every way but citizenship.” –G

“I know that I deserve all the rights that come with a little card and a nine-digit number” –I

“However hard I have tried to be American, I have never been seen as American.” –D

Our society is frustrated over federal failures concerning immigration policy in law and practice. The debate is polarized and polarizing.

On November 1, The Salt Lake Tribune reported on a commissioned poll. Polling numbers indicated that 59 percent of Utahns supported a path to citizenship for undocumented immigrants. The same poll indicated 60 percent support for requiring police officers to check legal residency upon reasonable suspicion after an arrest or traffic stop.

This inconsistency indicates a difficult challenge; however, we cannot afford to pass over the DREAM Act once again. A society seeking better fortune for itself should stand with DREAMers of good moral character seeking to do the same.