States’ Rights and Illegal Aliens

August 2nd, 2010 - by Quincy

During the summer of 2007 I lived in southern Arizona, about twelve miles from the U.S.–Mexico border. Needless to say, illegal aliens were everywhere. The border patrol regularly caught large groups of them, dangerously dehydrated, wandering lost through the searing desert. It was more common to see illegal aliens being loaded into the back of Border Patrol vans than to see police issuing speeding tickets. The problem is so bad there that the federal government has posted signs on many rural roads that read “Warning, Smuggling and/or illegal entry is common in this area due to the proximity of the international border. Please be aware of your surroundings at all times and do not travel alone in remote areas,” and “Travel Caution: Smuggling and Illegal Immigration may be Encountered in this Area.”

While it is unlikely that “the majority of [illegal aliens] are becoming drug mules,” it is a mistake to minimize the problem. Although most of the illegal aliens probably enter the United States in search of higher wages and government handouts, illegal entry into the United States—especially along the southern border—fosters lawlessness and threatens individual security and property rights. The difficult question is what to do about it.

After decades of frustration over the federal government’s failure to address the problem, Arizona passed SB 1070. Section 1 of the bill states,

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Notice that SB 1070 is an effort by Arizona to enforce “federal immigration laws.” It does not create new legal standards and requirements for immigration. Notwithstanding this, the federal government sued Arizona in federal court, seeking to have the law declared unconstitutional.

It its lawsuit, the federal government complains that SB 1070 violates the Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution:

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.

But claiming that SB 1070 violates the Supremacy Clause seems like a stretch to me. The federal government created a set of laws governing immigration and then adopted a policy of not enforcing those laws. SB 1070 doesn’t conflict with federal law; it conflicts with the federal policy of non-enforcement. A policy conflict doesn’t violate the Supremacy Clause. In fact, Arizona’s actions are probably more constitutional than those of our present and recent presidents. Under Article II Section 3, the President is bound “to take Care that the Laws be faithfully executed.” No honest, thoughtful American can believe that the immigration laws have been faithfully executed.

This doesn’t answer the question, however, of what role the states ought to have in regulating immigration. In other words, just because Arizona hasn’t violated Constitutional restraints by passing its law doesn’t mean that SB 1070 was good policy or that states should have a role in immigration. The drafters of the Constitution included an amendment process for good reason.

Rational critics of the Arizona law—I mean the ones that aren’t out parroting slogans about hate and racism—have offered a number of practical reasons why SB 1070 is a bad idea. See here (Reason Magazine), here (Cato Institute), and here (Cato once again). But good government and legitimate laws must be founded on just principles; mere economic analysis or consequentialist arguments are not enough. So, the initial question is what justifies restricting immigration? What justification exists for regulating movement across national boundaries? I believe that the justification derives from the fundamental individual right of property ownership.

Consider the following startlingly simple argument:

There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if “Primus” wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don’t want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.

The libertarian society would resolve the entire “immigration question” within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise

Murray Rothbard, The Ethics of Liberty 119-20 (2nd ed. 1998). In other words, for Rothbard, immigration is simply an issue of private property rights.

For reasons I explained in a previous post (and my lengthy explanatory/rebuttal comments), I don’t accept the idea of absolute private property rights as proposed by Rothbard. This makes the immigration issue more complex, but it is more true to reality. We don’t live in a world of absolute property rights and probably never will.

Additionally, whether we like it or not, many of the systems, resources, and goods in the United States have been socialized. We play in public parks and drive on public roads; we send our children to public schools; and, as of recently, our healthcare system has become socialized as well. Our trash disposal, water, electricity, and gas systems are often government-owned, or at least closely controlled by government. Our telephone, cable, satellite and internet systems and infrastructure are licensed and regulated by government and subsidized through the use of eminent domain. Our financial system is overseen by government regulators, and even our currency depends upon government promises for its value. A system of open borders where landowners control immigration through anti-trespassing laws simply cannot function under these conditions.

Despite all of this, property rights principles still can and should guide immigration law, albeit in a slightly different way. As stated by Rothbard’s argument above, a human right to immigrate would imply the right to enter and or use some property. In the case of private property, the private landowner holds the right to exclude. In the case of government property, the property right belongs to the citizens of the country or state which owns the property. This means that the citizens—through their elected officials—have the right to exclude from government property those who do not satisfy the conditions for its legal use.

This brings us back to the initial question about the role of states in establishing and enforcing immigration law. Traditionally, immigration law has been dominated by the Federal Government, and there is some constitutional support for this: Article I Section 8 Clause 4 explicitly grants Congress the power “To establish an uniform Rule of Naturalization.” But if we justify immigration restrictions by appealing to a modified theory of property rights, the states have at least as much of a right to control illegal immigration as the federal government has. Most public roads are owned by states, counties, and cities. If a utility is government-owned, it is the state or local government that owns it. Police and fire departments are funded through state and local taxes. And public schools are paradigmatically state and local entities. Significantly, these state systems are the ones that are most heavily burdened by illegal immigration.

Given the magnitude of the states’ interest in immigration law, it seems highly unreasonable to insist, as the federal government does in its lawsuit challenging SB 1070, that “the Constitution vests the [the federal government] with exclusive and plenary authority to establish the nation’s immigration policy.” While it makes sense—for uniformity’s sake—to vest control of legal immigration in the federal government, there seems to be no real need to do so for illegal immigration. If a person violates federal law and enters the country illegally, the alien’s state of residence will bear most of the burden that that person causes. So rather than sue the states for trying to protect their taxpaying, law-abiding citizens, let’s let the states protect their interests.

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