Posted on 03/11/2024 5:58:15 AM PDT by zeestephen
Key to understanding the president's authority to secure the border is appreciating where the immigration authority is placed under our nation's constitutional order...[Immigration wonk alert!]...[This is a 61 page (321 footnotes and citations) essay about the legal and practical history of immigration into the USA since the 1950s]
(Excerpt) Read more at cis.org ...
States should challenge the federal government's claim that border control falls under "immigration" on the grounds of sovereignty.
The real question is this:
Do we have a national border or do we have 50 separate state borders?
I'm coming to the thinking that it is the latter, that the several states are sovereign and own their borders, and the Constitution only gives Congress the power to establish "uniform Rule[s] of Naturalization" for the people who enter the United States.
Article I Section 8 also gives Congress the "Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings..."
Congress can erect Border Control facilities at designated entry points into the United States (on land purchased for that purpose from the states) for the purpose of regulating immigration and naturalization, but they cannot claim dominion over the entire border unless they actually purchase that land from the several states for "needful buildings." Note that the state legislature have to approve these federal purchases, the federal government cannot simply seize state land for federal purposes.
Equally to the point, they cannot use 5th amendment eminent domain to take state land (it is limited to private property), nor private land for border control as that is not "public use" (it is public non-use, though SCOTUS ruled in Keto v. New London that "public use" equals "public good" when it came to tax revenue).
We need to change the language of the border debate from federal control of the border to sovereign states owning their borders. Article I Section 10 and Article IV Section 4 give the states authority over their borders, and we need to make this the real issue.
James Madison wrote in Federalist #43 about the intent of Article IV Section 4 protection from invasion.
The republican form of government and protection from from invasion was for the fear of larger states invading smaller states and expecting neighboring states to band together to repel the invasion. It had nothing to do with the federal government protecting the border; the states were expected to protect each other's borders.
From Federalist #43 (James Madison):
6. "To guarantee to every State in the Union a republican form of government; to 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.In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be SUBSTANTIALLY maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution?
Madison sets up the argument by pointing out that the several states are of like disposition. A "superintending government" (the federal government, in this case) is the natural home for the authority to defend the system (republicanism). The more alike the states are, the more interested the states will become in each other's affairs, and the more desirable it will be for each state to maintain its form of government in harmony with the others.
Madison then gives a brief history lesson of past confederacies of dissimilar city-states.
Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. "As the confederate republic of Germany,'' says Montesquieu, "consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. '' "Greece was undone,'' he adds, "as soon as the king of Macedon obtained a seat among the Amphictyons.'' In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves.
Madison goes on to say that the federal government is not expected to enforce republicanism onto the states, it is enough to simply "guaranty" to the states a republican form of government, and the states will take care of enforcing it on each other.
These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority.But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.
This is how Madison disposes of the word "guarantee" in Article IV -- it is limited to the federal government issuing the guaranty to the states, but not enforcing it onto the states from above. The states were expected to police themselves based on their mutual common alignments, unlike how the "free cities and petty states, subject to different princes" of Europe behaved.
Regarding invasion, Madison expresses the fear that larger states will invade smaller states, but the other states will intervene to keep the peace.
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded;
Regarding insurrection, Madison writes that the federal government must support the state governments to quell insurrections because the federal and state constitutions are too interwoven to let domestic violence go unchecked. Madison thinks that the threat of federal involvement is sufficient to prevent an insurrection from starting.:
Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.
Madison writes about the fear of foreign influence in a state (an invasion of aliens) fomenting violence amongst the citizens, but that the remedy is the federal government organizing the neutral states to intervene on behalf of the rest of the nation.
...May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends...and that it is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, "that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound."
We have to understand that the Framers were less concerned about foreign invasion than they were about one state invading another state. Madison discusses protection from invasion and protection from domestic violence as the same issue from a federal perspective.
...the history of [the Swiss cantons] informs us that mutual aid is frequently claimed and afforded...Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State...
there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.
Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government.
It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest.
Madison then suggests that it is the neighboring states that should be the active bodies that quell domestic violence, not the federal government.
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends.
Finally, Madison summarizes the entirety of Federalist #43 with this plea to the states: that the obligations between states is more than just legislative ratification of a compact between states (like the Articles of Confederation). The several states can no longer take a breach of the Articles as an excuse to break the compact. the time has come to put effort into keeping the compact intact by mutually working to protect it.
PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.
Madison's point to Article IV Section 4 is this: The federal government doesn't have to act directly, it can empower the states to mutually act on its behalf to protect against invasion. This was the expected intent of the federal government. Things have become so twisted that the federal government is now DEMANDING that states stand down while it refuses to act, when it was the Framers' intent that the states would act on behalf of the federal government to protect against invasion, externally or internally.
I'll add this one postscript...
This is all pre-17th amendment thinking. When the Framers referred to the federal government, they were envisioning a federal government that was being managed by a Senate of the states.
It was the role of the governors of the several states to lead the people of their states.
It was the role of the federal Executive to manage the relationships between the states, to be the voice of the nation in foreign relations with other countries, and to be the commander-in-chief of the military during armed conflicts.
The President's constituents were the governors, not the people. The states were the sovereign governments closest to the people. That's why the Senate was designed to be appointed by their respective state legislatures: 1) to confirm the President's nominations for executive branch offices and judicial picks, and 2) to ratify treaties that the President negotiated with foreign governments.
It was the several states, through the Senate, that were supposed to "lead" the President, not the other way around. This is why Article IV Section 4 says "and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)..." The states were expected to communicate to their Senators to convey to the President what the states were going to do. They were not asking the President for permission, they were informing the President of their intended actions... actions like preventing invasions across their own sovereign borders.
My conclusions is to leave the rules of naturalization to the federal government, but let the states police their own borders.
That means that the several states can arrest people who trespass across their state borders, and then refer them to the federal government for violations of the uniform rules of Naturalization.
-PJ
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