Constitutional Immigration

We the People, through our States, have the right to defend ourselves against illegal immigration
Constitutional Immigration


By Douglas V. Gibbs



Immigration is a concurrent issue, where both the federal government and the States have authorities regarding the issue, depending on the parameters of the part of the issue we are talking about.



Article IV, Section 4, of the United States Constitution tasks the federal government with protecting the States from invasion.

An invasion is defined by the American Heritage College Dictionary, in its third definition presented, as “An intrusion or encroachment.” The American College Encyclopedic Dictionary’s second, third, and fourth definitions define invasion as being: “The entrance or advent of anything troublesome or harmful, as disease; entrance as if to take possession or overrun; infringement by intrusion.” Based on those definitions, I think it is safe to call illegal immigration an “invasion.”

If illegal immigration is an invasion, and Article IV., Section 4 of the Constitution tasks the federal government with protecting the States from invasion, then in line with Article I, Section 8, Clause 18 (Necessary and Proper Clause), it would be a constitutional requirement for the federal government to secure the border to protect the States from invasion. After all, it would be necessary and proper to secure the border in order to protect a State against invasion.



Article I, Section 9 explains that in addition to being able to prohibit the import of slaves after 1808 (which led to Congress outlawing the Atlantic Slave Trade), Congress also has the authority to pass legislation to prohibit “migration,” specifically giving Congress the authority to prohibit certain groups of such persons from entering the country, which includes those that have contagious disease. This is an important clause, because in reality, prior to the enactment of that clause, the immigration issue was primarily a State issue. Remember, prior to the Constitution, the States held original authority on all issues. Immigration laws did exist prior to the writing of the Constitution, and prior to the legislation in 1808, but not in regards to “migrants,” but in regards to the import across the border or seas of immigrants, thus protecting the States from invasion.

Today’s immigration laws by the federal government are in place specifically to protect the receiving population against illness, criminals, and other dangerous persons by prohibiting “such persons as any of the States now existing shall think proper to admit” from entering the country in the first place. That was the whole reason for the creation of Ellis Island. Immigrants were screened, tested, and considered healthy and safe, before they were allowed to enter the country.

What that tells us is that the part of the immigration issue that is the federal government’s authority, and duty, is to secure the border and prohibit dangerous persons from immigrating into the United States who may be a part of an unwanted encroachment.

Through executive branch departments, such as the Border Patrol, and ICE, it is the executive branch’s duty to ensure the laws of the union are executed. In Article II, Section 3 of the United States Constitution it states that the President “shall take care that the laws be faithfully executed.”

However, what happens once the illegal aliens are within the boundaries of the States? The federal government cannot normally operate within a State without the permission of State officials, such as County Sheriffs, Governor, and legislature. This is why, before federal assistance can come in during natural disasters, a governor must declare a State of Emergency. That is the equivalent of the State saying, “Okay, federal government, you are invited to come into our State to operate during this disaster. We give you permission.” Therefore, once the illegal aliens are within the State, unless the State asks for assistance, federal agencies are normally not allowed to operate in the State. There are provisions that allow immigration departments like ICE and the Border Patrol to operate in a State, but understanding that a federal department can not normally do so without State permission reminds us that it is the State’s right to protect its own internal affairs, including handling the enforcement provisions of the immigration laws. That brings the Arizona immigration law to mind, but we will get back to that.

What about the use of additional personnel to secure the border? People tell me often, “We have a President that refuses to do so with the Border Patrol, and ICE, and he won’t deploy the National Guard to the border, as well. What should we do?”

I remind folks that though the President has full authority over departments that reside within the Executive Branch, that does not mean he can call other troops to the border. The National Guard is a part of the militia. The U.S. Code defines the militia in two parts, the “organized militia,” and the “disorganized militia.” The National Guard, the State Militias, Naval Militia, and so forth, are all a part of the “organized militia.” The unorganized militia consists of the citizens.

The militia is expected to be a “Well Regulated Militia,” as provided in the Second Amendment.

The word regulated, as defined by the founders back during the writing of the Constitution, and as provided by the 1828 Webster’s Dictionary, which can be viewed online, is as follows: “Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions.” This makes sense, when you consider the militia during the Revolutionary War was not in good order. So, a Well Regulated Militia is a militia that is in good order. That is why in Article I, Section 8, Congress is tasked with providing “for organizing, arming, and disciplining, the Militia.” In the clause prior, Congress is also given the authority “for calling forth the Militia to execute the laws of the union, suppress insurrections, and repel invasions.” That same authority is not given to the President.

In Article I, Section 10, in the final clause, the Constitution says, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” What that means is that if a State is being invaded, the State, and more specifically, the governor, may call forth the militia to defend the State.

So, in short, the executive branch and Congress must secure the borders, but once the invasion enters the State, it is up to Congress or the State to put a force in place to stop the invasion. When Congress calls the militia into action, the President becomes involved as Commander in Chief over the militia. Article II, Section 2 states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.”

When the governor calls the militia into action to protect the State from invasion, the militia was not called into service of the United States, but into service of that particular State. However, when Congress calls the militia into service to protect the State from invasion, then it has been called into the actual service of the United States, and then the President becomes a part of the operation as Commander in Chief. He cannot be the Commander in Chief over the militia if the governor calls the militia into service, because then the militia has been called into service of the State, not of the United States (federal government).  That was put into the Constitution to enable States to defend themselves against imminent danger, without the worry that the President will use a standing army against the States.

Remember, the President cannot call the militia into action.  That is the job of the States, or Congress (the voice of the people).

That last part is an important clue.  Illegal immigration, or more specifically, “invasion,” is a concurrent issue where the States have authorities regarding the issue, just as the federal government does, and in fact our involvement in the issue is supposed to exceed the powers the executive branch has regarding the issue.

Which brings us all the way back to the Arizona immigration law. Arizona had every right to protect itself from invasion, and to enforce immigration law, yet this lawless administration sued the State over it. Then, on top of that, Justice Department chief Eric Holder filed the case unconstitutionally.  According to Article III, Section 2 of the United States Constitution, “all cases. . . in which a State shall be party, the supreme court shall have original jurisdiction.” In other words, the case must go straight to the Supreme Court, and Holder filed the case in a district court.

We the People, through our States, have the right to defend ourselves against illegal immigration.  The executive branch must execute the immigration laws as they are on the books with their agencies (border patrol, ICE).  Congress, and the Governor of a State, has the right to place personnel on the border to secure the border.  President Obama cannot legally act to the contrary with executive orders, nor can he legally act with or without Congress.  He is lawless, and he knows it, and it is up to We the People to ensure the rule of law is followed, if he refuses to.


http://1828.mshaffer.com/d/search/word,regulated

http://www.law.cornell.edu/uscode/text/10/311