Taking the Tenth Amendment Seriously
The Revolt of the States
By Gayle Kesselman
It was with trepidation that I went to the National Immigration Summit held in Phoenix, Arizona on July 30 and 31. The summit was organized by national anti-illegal immigration organizations and was scheduled to celebrate the day that Arizona's State Bill 1070 became law. The National Immigration Summit was planned to send a congratulatory message to Arizonans who were finally able to take effective action to protect themselves from a horrendous crime problem tied to illegal immigration.
As we all know, SB 1070 has become a cause célèbre in the national media. The new law requires, among other things, that foreign nationals carry documentation of their citizenship status. Furthermore, SB 1070 allows local police to check this documentation and to verify an individual's status if, in the course of their routine police activities, they have reason to suspect that that individual is in the country illegally. As a result of these provisions, local police can more easily turn individuals over to federal authorities for deportation.
But last-minute events threatened to dampen the celebration. As a result of a lawsuit brought against Arizona by Attorney General Eric Holder on behalf of the federal government, Judge Susan Bolton was able to file temporary injunctions against several portions of the SB 1070. But instead of being overcome with disappointment, attendees at the summit were jubilant about the fact that significant portions of SB 1070 had actually become law. That this was not reported in the mainstream media should surprise no one. These details were even neglected to a large extent by the conservative media, which tended to be preoccupied with commenting on what commentators saw as the inappropriate nature of Judge Bolton's ruling. But the fact remains that significant portions of SB 1070 were not affected by her ruling and are now law in the State of Arizona.
To take just one example, one section of the bill mandates a fine of up to $5,000 a day payable to the State of Arizona by any city which openly declares itself a so-called "sanctuary city." This would include the city of Phoenix, which, under the leadership of Mayor Phil Gordon, has a policy of not allowing police to question anyone's citizenship status. When Judge Bolton ruled that the federal government had supremacy in the area of immigration law that could not be overturned by states or localities, she effectively ended the ability of Mayor Gordon to thumb his nose at federal immigration law. Of course, if Mayor Gordon feels that strongly about Phoenix remaining a sanctuary city, he does have the option of having his city pay a fine of $5,000 every day to the State of Arizona. The section of SB 1070 that mandates the abolition of sanctuary cities under penalty of law was not struck down by Judge Bolton, and so it stands.
Another section of SB 1070 makes it illegal for an employer to pick up a day laborer on a busy street under penalty of getting his car impounded. This section of SB 1070 was also left standing by Judge Bolton. This provision goes a long way to shutting down public areas where illegal immigrants congregate looking for work and makes Arizona a less attractive state for illegal immigrants to settle in.
The energy and enthusiasm at the Phoenix Summit was palpable. Attendees saw SB 1070 not as a defeat, but as a victory. SB 1070 was not made null and void, as the mainstream media would have had you believe, and the injunctions put in place by Judge Bolton are temporary. At the summit were Arizonans who were fired up and determined to fight all the way to the Supreme Court if necessary. There was excitement and a sense that time is on their side.
Events at the summit were reflective of more general political currents swirling under the radar -- certainly of our mainstream media, and even of our conservative media. The fact is that almost every state in the United States has adopted, or is planning to adopt, some sort of measure relating to illegal immigration. And this is happening as a counterpoint to the vacuum of principled leadership on the illegal immigration issue by our politicians in the federal government.
According to Mary Giovagnoli, Director of the Immigration Policy Center, just in the first quarter of 2010, 1,180 immigration bills were introduced in state legislatures, and 206 laws were enacted. To highlight a few examples, Virginia enacted H737, which requires state agencies, public contractors, localities, and private employers with fifteen or more employees to enroll in the E-Verify program by December 1, 2010. E-Verify is a federal program which enables employers to ensure that prospective employees have valid social security numbers and are therefore either U.S. citizens or legal residents. During the same period, South Dakota introduced H1107, requiring evidence of legal presence in the U.S. to renew a nonresident commercial driver license; and Oklahoma introduced H2751, requiring any immigrant unlawfully present under federal immigration law to submit to DNA testing for law enforcement identification purposes if arrested. Both laws were subsequently enacted.
This phenomenon of states asserting their sovereignty in defiance of the federal government is apparent in areas other than immigration. Montana and Tennessee have both enacted legislation which would in effect nullify federal gun laws for ammunition, firearms, and firearm accessories which are manufactured and remain in their respective states. Alaska, Florida, Michigan, Minnesota, Ohio, and South Carolina have introduced similar legislation into their state legislatures. And we all know about the lawsuits initiated by numerous states seeking to overturn the recently passed federal health care reform popularly known as ObamaCare.
As Thomas E. Woods points out in his excellent book Nullification: How to Resist Federal Tyranny in the 21st Century, the sovereign states that make up the United States were meant to be checks against federal tyranny. Prior to the Civil War, there was an impressive history of states using their power to attempt to nullify federal laws that the states considered unconstitutional because the federal laws impinged on the sovereignty of the states. For many years following the founding of our country, these attempts occurred in the context of a wide range of issues which had nothing to do with the abominable institution of slavery in the South. As Woods notes, however, beginning with the buildup to the U.S. Civil War and up to the Civil Rights struggles of the 1960s, the issue of "State Rights" has been associated chiefly with attempts to perpetuate racial injustice. Unfortunately, this has led to demonization of those who believe that sovereign states can play a significant role in blocking the federal government when it oversteps its constitutional boundaries.
In some ways, our present divided country is a mirror-image of the one that plunged into civil war a century and a half ago. In those days, "States' Rights" was the clarion call for those who wished to perpetuate a morally corrupt and oppressive system. In our current era, when it comes to issues including immigration, gun rights, and health care, to name just a few, it is the states who are asserting themselves against a corrupt and oppressive federal government. The revolt of the states is real and growing. It is time to reexamine the issues of state sovereignty with new eyes, free from outmoded canards of the past.