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Tea Parties, The Tenth Amendment and The Attack Upon SB 1070

July 11, 2010
Neal Ross

My last two articles regarding the Tea Party movement stirred up a bit more of a hornets nest than I had anticipated, but hopefully my rebuttal got people to thinking about what they themselves stand for, and what they are willing to STAND UP for.

One of the things that was brought up as a result of my articles, and the subsequent discussions was one of the platforms of the Tea Party movement; Constitutionally Limited Government.

That is all well and good, keeping government from overstepping their specifically enumerated powers, but what about the flip side, their unwillingness to enforce the laws they are Constitutionally authorized to enact?

As everyone is probably aware of by now, the federal government has sued the state of Arizona due to their passage of SB 1070. Arizona ONLY passed that legislation because the federal government has not done its job of enforcing the very laws they themselves passed.

Therefore, since there seems to be so much concern over the limits imposed upon government by the Constitution, I would like to discuss this from the flip side, the federal governments refusal to do one of the few things it is authorized to do, set and enforce immigration law.

The Constitution authorizes Congress to pass laws in regards to ‘an uniform Rule of Naturalization’ as per Article 1, Section 8. It does not say that once this law, once passed, cannot be modified, or amended, only that Congress must ensure that the law be uniform.

Title 8 of the United States Code is where the codified version of immigration law, passed by Congress, can be found. This is the law, and all public servants who swear an oath to uphold the Constitution, are bound to uphold this law.

According Chapter 12, Subchapter II, Part 1227, under the heading of Deportable aliens, our nations immigration laws clearly state, “(a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: (1) Inadmissible at time of entry or of adjustment of status or violates status (A) Inadmissible aliens Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable. (B) Present in violation of law Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201 (i) of this title, is deportable.

That’s the law people, anyone who fits into any of those categories is considered as a deportable alien. It does not give any consideration for the fact that they have lived, and worked, in the United States for a specific amount of time. If you are in this country in violation of any of the legal processes for entering this country, you are a deportable alien. PERIOD!

Therefore, the federal government is guilty of not enforcing its own laws. Until the law is amended, or new law enacted, it will continue to be guilty of not enforcing its own laws.

So, any and all talk about immigration reform, a pathway to citizenship, is just smoke and mirrors, designed to cover up the fact that they have been negligent in their sworn duties, and due to their negligence, upwards of 20 million people are now living in our country in violation of our law.

In attempting to sue the state of Arizona one has to look beyond the emotional issue of immigration itself to see how this lawsuit has serious implications as to the relationship between the states, and the federal government.

States rights and their sovereignty has been disputed going back at least to the Civil War, when the federal government went to war with the southern states for exercising the very same right that the nation as a whole had when they went to war with Britain for their independence.

Our nation’s Declaration of Independence states, “Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience [has] shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Just as our nation was well within its right to seek to throw off the chains of oppression by Britain, the southern states were well within their rights to secede from what they considered to be an oppressive federal government. However, the federal government did not see it that way, and they went to war, killing thousands of people in the process, for as Lincoln said in his inaugural address, “I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.

However, the question of state sovereignty can be readily answered if one considers the wording of the Constitution itself. Article 4, Section 3 states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Notice how it distinctly differentiates between Territory or other Property belonging to the United States, and any particular states? The states are not possessions of the federal government. They are individual sovereigns, who, in coming together, created the federal government to oversee the affairs of the union of the states according to the specifically enumerated powers found within the Constitution.

Furthermore, Section 4 of Article 4 states, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

If the federal government was to be omnipotent, why would the Constitution allow for each state to have its own government? What would be the need? Furthermore, this section guarantees that the federal government shall protect each state against invasion.

I don’t know what you call it, but in my book 20 million foreign citizens, coming into my country illegally, is clearly an invasion. Where is my governments in regards to protecting my state from such a massive influx of foreign invaders?

The federal government has clearly been negligent in enforcing its own laws, and by being negligent, they have put the individual states in the position of taking matters into their own hands. So far Arizona is the only border state whose Governor, and state legislature has had the spine to stand up and say that they are not going to tolerate it any more.

I know without a doubt that my Governor may have played the big he-man action hero in the movies, but when it comes to doing what is right for my state, he has the spine of a slug.

Now, since it has clearly been established that our federal government has been negligent in their responsibility to enforce their own immigration law, and due to that negligence, the states have suffered the burden of dealing with the fiscal, and social costs of all these illegal aliens, let us for a moment take a look at what the Bill of Rights says.

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This means that although the Bill of Rights specifically outlines ten rights of the people, those ten rights are not the only rights the people retain. Samuel Adams once said, “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.

All Arizona is doing is defending its property from people who should not be there in the first place. They are exercising their right to defend their property, a right that was considered by our founders to be a natural right, and therefore unalienable.

Finally, at the very heart of this whole matter is the implications of the federal government suing the state in regards to how it will affect the interpretation of the Tenth Amendment.

The federal government is basing its entire case upon the Supremacy Clause of the Constitution, which states, “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.

However, the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The wording of this amendment is of particular importance. It does not declare that the state cannot enact law which mirrors federal law, only that the state retains all powers not prohibited to them by the Constitution.

In discussing the Tenth Amendment in Congress it was debated whether or not to insert the word expressly before the word delegated. If that had happened, it would clearly imply that unless the powers were clearly defined by the states, they did not have them. Since both Houses of Congress refused to insert the word, the intent was that the states retained all powers not specifically prohibited to them by the Constitution, to include passing their own laws which may mirror federal law.

There are many laws, especially in my home state of California, which mirror, or exceed those imposed by federal agencies. Of particular note are the stringent EPA regulations in California, far stricter than anything imposed at the federal level. Yet the Department of Justice has yet to sue the state of California for overstepping federal environmental protection law.

If you ask me, this whole lawsuit has a twofold purpose. First it is being undertaken because the illegal alien population are largely dependent upon government programs for their sustenance. If they were to be deported, as required by U.S. Code, Title 8, then the federal government, especially the Democrats, would loose a large constituency that relies upon them for their sustenance.

Secondly, the federal government has a proven track record of assuming powers not delegated to them, and infringing upon both individual, and states rights. If won, this case would set a precedent that would, for the most part, do away with the Tenth Amendment entirely.

So, although the Tea Party movement may be specific, and generalized in their call for limited government, this particular lawsuit should be one in which they are very concerned about, and therefore very outspoken in regards to.

It may seem like I have chosen to go to war with the Tea Party movement, but that is far from the case. I am only trying to educate those who may be participants in that movement that there are issues which go beyond generalities that are of grave concern for our nation, and our rights.

It is far too late in the game to be speaking in generalities. We all need to make our voices heard, in unison, whenever we see a threat to our rights, and our liberty. In closing I would like to leave you with a quote by John Stuart Mill and his treatise entitled Representative Government, “”A people may prefer a free government, but if, from indolence, or carelessness, or cowardice, or want of public spirit, they are unequal to the exertions necessary for preserving it; if they will not fight for it when it is directly attacked; if they can be deluded by the artifices used to cheat them out of it; if by momentary discouragement, or temporary panic, or a fit of enthusiasm for an individual, they can be induced to lay their liberties at the feet even of a great man, or trust him with powers which enable him to subvert their institutions; in all these cases they are more or less unfit for liberty…

Therefore, I ask of all of you who may be reading this, all who say they understand the Constitution and support it, are you up to the challenge of defending your sister state in its defense of it inherent right to protect its border when our federal government is obviously not up to the task?

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