Immigration – The Sanctuary City: A Constitutional View

It is a simple fact that each state that has joined the union has agreed to very specific division of authorities established in The Constitution. These authorities divide Federal authority and responsibility from State authority and responsibility. Because of the 10th Amendment the use of federal power is supposed to be limited to only those specified powers granted in The Constitution. However, the citizens of the United States have been watching  the “federal” government inch more and more towards a “central” government constantly impinging on the prerogatives of the State governments. With the advent of the sanctuary city and now sanctuary state the U.S finds itself now having to deal with local and state level governments usurping on Constitutionally assigned federal authority. This  is not the first or only time in U.S. history this has happened. However, the unwillingness of the Congress to defend its Constitutional authority and obligations as well the Executive branch behaving the same, has left the country in a real Constitutional crisis. A crisis which nobody calls out or is addressing in the public dialog as a Constitutional crisis.

Article I, Section 8, Clause 4 establishes the power of Congress over  the process of naturalization which has always included immigration.

 To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Additionally, Article I, Section 8, Clause 18 grants Congress the authority make laws involving those assigned powers and responsibilities.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In response to the Constitutional mandate the Congress has established statues dealing with naturalization and by extension immigration. The most current law being U.S. Code Title 8, Chapter 12. With the exception of the 14th Amendment, Clause 1, of The Constitution, there are no guidelines limiting the Congress what they may legislate into law. This also limits how the courts including The Supreme Court may rule in regard to naturalization and immigration to the  current statutes. Any local government or even state government passing laws expanding or ignoring what congress has established are in direct contravention of federal law with regards to immigration and naturalization. They are in effect claiming the sovereignty of an independent nation outside the United States and are in violation of their agreement as a part of the United States.

Also in play is the Supremacy Clause, Article VI, Clause 2 which further limits the rulings of the court system and the laws passed by the state legislatures and local communities.

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.

This Clause clearly states that the court system has an obligation to uphold those federal laws that have been established under proper authority. Additionally it makes an inference to produce a “Request for Writ of Certiorari” when the question is for a higher court to decide.

Naturalization and Immigration as an extension of Naturalization and its laws are a delegated power of the United States and the power is prohibited to the State. In the most recent Supreme Court ruling on state authority Arizona v. United States, 567 U.S. 387 (2012) it upheld federal authority as established in Article I, Section 8 Clause 4 and The Supremacy Clause Article VI, Clause 2. Here are some critic points from the ruling as written by Justice Anthony M. Kennedy.

  • The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1 .
  • The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88 . Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218 . Second, state laws are preempted when they conflict with federal law, including when they stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52 .

One of the most forgotten or even ignored portions of The U.S Constitution is the requirement of the oath of office. The oath is supposed to insure that the individual assuming an elected or appointed position in the government will behave within the limits and authorities set in the governing documents for that position. The Founding Fathers thought it so important that they insured that it be a requirement to assuming any kind of public authority that they included it in The Constitution.

            U.S. Constitution, Article VI, clause 3

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Everyone who is elected, appointed, or hired into a government position takes an oath to the Constitution. It is treated as a ceremonial requirement. Know one is ever held to their oath. The country expects military personnel to live up to their oath but not law enforcement, legislatures, lawyers, judges, or bureaucrats. There are laws requiring the oath. The current statutes being,  5 U.S.C. §3331 and 2 U.S.C. §25 at the federal level. Every State has laws in accordance with The Constitution as well. However, there is no proscribed consideration for the violation of the oath or punishment for violating the oath in federal law. Considering that public office holders have tremendous power and influence over society, they should be held to at least the same standards as the average citizen. The violating of the oath of office  should at least be punished the same as perjury.

For the last roughly 20 plus years the federal government has allowed cities and counties to operate outside their authority. In effect a state of secession regarding immigration enforcement. The problem has now grown into States claiming sanctuary status. Why has the federal government allowed this to continue when they have the solution already in statute? See 8 U.S. Code § 1324(iii)(iv). The U.S. citizen is always told that know one is above the law. Where are the indictments for harboring and shielding illegal aliens? It seems that citizens are going to have to demand that those violating the law are held to the law. When are bureaucrats, law enforcement, and politicians going to be held to account?



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