Federal Preemption on Immigration, cont.

In the previous post I lamented the popularity of the belief in this country in the concept that the federal government has "exclusive" authority over control of immigration.

This whole idea is such a no-brainer to me that it renders me almost incapable of seeing the issue any other way than the way in which I see it, which is to say that the national, state, and local authorities, under a (relatively) balanced federal system of government, each have a share of the reponsibility for controlling immigration and enforcing immigration law. I've quoted the old saying before in this connection, but it bears repeating: "There is nothing so absurd than if you repeat something often enough that people begin to believe it." But what is the result of repeating something often enough that people begin to believe it?

Well, here is a prime example of the kind of absurdity which results:

The federal government pays for part of the program -- but not for services to illegal immigrants. The state picks up that cost. Up to now, the state has used a statistical formula to calculate the number of illegal immigrants who use Family PACT. Suddenly, the Bush administration is giving the state 30 days to switch to a system in which each client would be individually vetted for legal residency, a ridiculously inefficient arrangement that would increase the state's costs by an estimated 40%.

But the administration's demand isn't just wasteful; it's duplicitous. Immigration is a responsibility of the federal government, not the state. In fact, the feds should be stepping up to pay the full costs for illegal immigrants. The presence of immigrants in California who lack the legal status to use many public services represents a dual failure on the part of the federal government: It has neither prevented illegal immigration nor enacted comprehensive immigration reform to resolve the conundrum within its borders.

Boy, it must be just wonderful to live and operate in a fantasy world in which the federal government is both the source of all that is good and all that is evil in the world at the same time; a world in which one can half-wittedly contradict oneself, proclaiming that immigration is an exclusively federal issue and then denying it; a world in which one builds his opposition to a given federal initiative on the basis that the state to which it applies picks up the tab for its own illegal immigrant population, then in the next breath insists that the very arrangement which forms the foundation of his opposition to the fed's imposition on the state is itself an illegitimate arrangement.

As Stephen Hopewell recently remarked at his blog:

If the goal of higher education is to inculcate in young people the knowledge, mental skills, and virtue of character needed to act as leaders of society, we are being led by what is probably the worst-educated group of people in our entire history. We have experts in finance who are unaware that you can’t spend money that you don’t have; experts on gender who can’t tell the difference between a man and a woman; and experts on religion who don’t understand that Islam is the religion of jihad. And so we stumble along, blind to the dangers looming up ahead, absorbed in the particular tasks of our profession that seem oddly disconnected from the big picture.

Quite so. Or as dad long ago denominated them, "educated fools."

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Call Me Mom writes:

I've asked my State Sen. this before, but it seems like it needs to be asked again. Why would we be paying for anything for illegal aliens other than their transport out of the country?

I don't understand how any government agency, local, state or federal could possibly justify giving anything to illegal aliens, much less codifying which level is responsible to pay for it. If government officials want to "be nice" to some illegal alien who's down on their luck, then let them take the funds out of their own pockets to do so and leave mine alone.

Or am I loopy?

Mom continues:

Are government employees exempt from the duties of citizenship? How can they even fill out such forms without being thrown in jail for aiding and abetting?

TM replies:

Mom, you raise some valid points. I think much of the confusion over which sphere of government has the responsibility to effect immigration law and law enforcement comes from the government itself. Consider that California passed Proposition 187 way back in 1994. All the experts seem to agree in one fundamental point concerning immigration law, it is the exclusive domain of the federal government to enact and enforce it.

In the entry preceding this one I linked to a "fact sheet" produced by the National Immmigration Law Center (NILC). Here are a couple of excerpts from the paper concerning federal preemption in California's Proposition 187:

A federal court found unconstitutional a California law, Proposition 187, that required state and local law enforcement agencies, social services agencies, and health care and public education personnel to (1) verify the immigration status of persons with whom they came in contact; (2) notify certain individuals of their immigration status; (3) report those individuals to state and federal
authorities; and (4) deny those individuals health care, social services, and education.13 The court found that the “verification, notification and cooperation/reporting requirements” in Prop. 187 “directly regulated immigration” by “creating a comprehensive scheme to detect and report the presence and effect the removal” of undocumented immigrants.

Not all state laws involving immigrants are preempted. For example, in LULAC v. Wilson, the court upheld the benefit denial provisions of Prop. 187 because those provisions could be implemented “without impermissibly regulating immigration,” since state agencies could verify eligibility for services and benefits through federal determinations of immigration status through SAVE.

But as is noted in the Wiki article linked above, the law was killed, not by the federal government, but by the State's own governor Gray Davis when he dropped the state's appeal. So what can be said -- besides the fact that the NILC conveniently leaves certain facts out of its self-styled "fact sheet" -- about the case of Proposition 187, that Governor Davis preempted federal preemption?

One can understand, given its purpose, and given the fact that the federal government has abdicated its responsibility in a "field it has occupied," and intended a "complete ouster," why the NILC would propagate the "federal preemption" principle (somehow I get the feeling that the NILC would be vying for states' rights on immigration were the federal government actually enforcing federal immigration law in a meaningful and "measurable" restrictionist way), but they ain't the only experts doing so. Consider Senior Policy Analyst for the Center for Immigration Studies Jessica Vaughan's Sept. 20, 2005 testimony before the Joint Committee on Housing, Massachusetts State House:

The fiscal costs of illegal immigration at the state level are evident to most anyone working in state government. Most people also realize that immigration policy is a federal responsibility. But if you're waiting for the federal government to solve this problem, you're going to be waiting a very long time. There are no proposals currently being considered at the federal level that will solve this problem. (italics mine)

There you have it, even immigration restrictionists like Vaughan adhere to and propagate the doctrine of federal preemption, albeit in Vaughan's world the federal government is to dictate immigration policy to the states and the states, in turn, are to enact laws which do not conflict with federal immigration policy. But what, in principle, is different about Vaughan's perspective and that of NILC?

Vaughan continues:

That is why states around the country are beginning to take the initiative and adopt policies to address this problem, both to minimize the fiscal costs, and also to contribute to the larger federal effort to reduce illegal immigration. The SAVE program, which is used by numerous state agencies around the country, is a proven low-cost, reliable, non-discriminatory way to serve these goals and to help enforce the existing General Law on eligibility for public housing.

But wait! If the doctrine of federal preemption is legitimate, as Vaughan and the NILC agree, then on what legal basis do the states preempt the federal government by enacting their own laws? It's all just very confusing.

Would the immigration restrictionist Vaughan continue to adhere to her belief in the doctrine of federal preemption if the federal government managed to pass a "comprehensive immigration reform" package such as the one the Senate tried to pass last year?

It's this doctrine of "federal preemption" that I have an issue with. By this doctrine, and the all encompassing basis on which it is founded, no state in this union has the right to protect itself and its legal citizens against invasion by foreign migrants unless our masters the federal government grant us this right explicitly. But to borrow Vaughan's phrase, if you're waiting on the federal government to do that, you're going to be waiting a long, long time.

Like I've said before, let's stop beating around the bush and make this idea official.