Pasha Tasvibi April 12th, 2008
Article I, §8 of the Constitution expressly gives Congress the power to “establish a uniform Rule of Naturalization”. The Supreme Court in Fiallo v. Bell ruled that “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens”. The new Arizona law enters upon an area that has been held to be the exclusive province of the Federal Government. The Court has consistently found field preemption in the area of immigration. In Hines v. Davidowitz, the Court determined that preemption exists whether a state law conflicts or happens to serve the same purposes as the federal regulation.
Furthermore, the Arizona law has the potential to indirectly affect our foreign policy, which is another area that is considered to be in the exclusive domain of the Federal government. The laws impact of forcing immigrants to leave has already stirred a response from the government of Sonora. Regardless of whether the Mexican government is complaining about a large flow of immigrants back to their country this is clearly an issue that must be diplomatically handled between our Federal government and the Mexican government.
Not only are immigrants being harmed by Arizona’s immigration laws but many United States citizens who are business owners. Enforcement of the law has caused legal and illegal labor to leave the state, businesses to leave and relocate in another state and for other residents who have had their business licenses revoked to suffer extreme financial ruin. Most small businesses rely on private loans, and if they end up losing their business license then this would have a devastating impact on the local banks in the long-term. I would be curious to see if this law could be challenged under the Dormant Commerce Clause. Obviously there would need to be more specific findings but it the law unduly impedes interstate commerce then it would be invalidated in order to protect our national market. The housing market throughout the nation is in crisis, our economy is suffering and this law does nothing to help stimulate growth.
Another danger I see with this law is what the Maricopa County Sheriff’s department calls “volunteer posses”. If in fact these volunteer’s are not deemed as state actors then there are grave issues with how far they may go. Basically, as private citizens these volunteers have some level of immunity and can go and violate people’s constitutional rights since the constitution only governs what the government can do. There may be civil remedies available but not likely when dealing with a group that is mainly composed of low-income individuals with limited resources available who have been traditionally underrepresented.
Speaking from my own personal experience, I can relate to some degree with Mr. Ochoa’s experience. I recently was told by my employer that I was not listed as a possible illegal immigrant with the Social Security Administration. I have been a citizen for over 10 years and even have a United States passport so when I heard this it was pretty shocking. However, I was able to go to the local Social Security office and presented them with my valid United States passport as proof of my citizenship. As Ms. Lotspeich had stated, the Social Security office did accept my passport as proof of citizenship. It seems that Mr. Ochoa’s situation may be a rare one whether the Social Security clerk was unaware of what forms of documentation are acceptable. Although, this example does show some of the major flaws we currently have with the federal administrative process. What we end up getting is a complex and inefficient system that is the product of various levels of bureaucracy.
And what would an immigration blog be without a little bit of controversy to help stimulate the mind. I leave you with this passage to think about when considering Arizona’s new immigration laws:
Since Mussolini, there have been many conflicting definitions of the term fascism. Former Columbia University Professor Robert O. Paxton has written that:
“Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victim-hood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”
Paxton further defines fascism’s essence as:
“…a sense of overwhelming crisis beyond reach of traditional solutions; 2) belief one’s group is the victim, justifying any action without legal or moral limits; 3) need for authority by a natural leader above the law, relying on the superiority of his instincts; 4) right of the chosen people to dominate others without legal or moral restraint; 5) fear of foreign `contamination.”
