November 22, 2017

Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered.

But I’m not here to look at why it is that the topic leads people to respond in such volatile terms. Propose your own theories, and we can discuss them later. Right now, let’s look at why so much confusion about “whose” problem it is.

In other words: why are whole countries suing Utah  (and don’t say that it is because those countries are the beneficiaries of billions of dollars in remittances each year. They are, but that’s beside the point) over immigration laws that it passed during the last session? That’s right: they’re coming to America, and they’re coming with lawyers.

More than a dozen Latin American countries have filed legal briefs in federal court arguing Utah’s enforcement-only immigration law will damage international relationships and urging the judge to rule it unconstitutional.

[…]

Mexico is the lead country on the brief but was joined by Argentina, Peru, Nicaragua, El Salvador, Chile, Paraguay, Uruguay, Honduras, Colombia, Costa Rica, Ecuador, Guatemala and Brazil.

Why not sue the United States? Or the federal government? That’s the party that has dropped the ball. Why take it to Utah? It is, after all, the federal government’s responsibility to manage immigration to this country…

Wait a minute.

Maybe that’s exactly the point. Immigration to the United States is a federal function, not a state function, and the federal government–or rather, the Congress–has done a poor job of cleaning up the convoluted and confusing immigration system, if they’ve done anything at all.

The Executive Branch hasn’t exactly done it’s part, either. Admittedly, America’s borders are long and porous, making it difficult to know who is here, how they got here, whether we want them here, and whether they should be sent back. It’s a man-power intensive task, and the jurisdiction for the task is split between several agencies.

Then there’s always the debate about whether we should care about people crossing any border at all, but we’ll leave the ideological arguments aside for now. (Calling all libertarians…) The real confusion under the now existing legal framework–the federal constitution–is which party should be handling immigration (the states or the federal government), and, secondly, are is that party actually dealing with it. (I’ll give you a hint: not really)

Nevertheless, it is the federal governments job, not the states’, to deal with immigration.

Which brings us back to the lawsuit by Mexica et al. versus Utah.

In the brief, attorney Lon A. Jenkins makes the case that “Mexico has a right to protect the interests of its nationals within the limits of international law. Mexico seeks to ensure that its citizens present in the U.S. are accorded the human and civil rights granted under the U.S. Constitution and affirms that HB497 threatens the human and civil rights of its nationals.”

Ostensibly, the attorneys are arguing that this is about the civil and human rights of the foreign nationals here in the United States, of which Utah is a member, whether they are called “illegal,” “undocumented,” or “the people who do manual labor for a market rate.” In a sense, it is.

However, less directly, but I think more accurately, we are seeing a federalist argument, one made more difficult because of failures by the federal government to do what it is supposed to do.

And Mexico wants federal courts to remind Utah and its well-meaning legislators of the fact that international policy, including immigration and the flow of immigrants across borders, is not Utah’s to worry about. Never mind that the result is more do-nothing federal policy for which Utah and other states will end up footing the bill.

Broadly speaking, the most primary function of a national government–something on which I believe everyone from libertarians to communists can agree upon–is to provide security from foreign invasion. Traditionally, and again broadly speaking, the federal government has been responsible for foreign relations.

The source of this responsibility is found in several places of the federal constitution. For some examples:

  • Art. I. Sec. 8 gives Congress the power to regulate commerce with foreign nations (as well as between the states), as well as to set up rules of naturalization.
  • Art. I. Sec. 10, in contrast, prohibits the states from forming an “Agreement or Compact” with a foreign nation
  • Art. II, Sec. 2 delegates the President the power to make treaties and  appoint ambassadors (“Advise and Consent” not withstanding)
  • Speaking of treaties, under Art. VI these agreements carry the same force of law as the federal constitution, making them binding on the states and the “supreme law of the land”

And so on. In the intervening two centuries plus, we’ve seen the federal government wax and wane in its responsibilities in foreign relations (including war and border security and naturalization, etc, in that meaning). We’ve also seen states engage on the international stage in what ways they can, and can’t, with varying degrees of success and legality.

Which leads us back to immigration. As a political issue, it presents problems economic, social, cultural, and legal that neither of the major political parties had addressed adequately  from the halls of Congress or the White House, but which the states must deal with every day. The accumulation has over the years lead the states to begin to evaluate what they can do to manage their citizens concerns and to start passing laws to that end.

It is the conflict between an absence of action, then, and the need for action that has led Utah to legislature immigration and has led Mexico to sue Utah over that legislation. Want to place a bet on whether the US government will do anything to try to solve or take responsibility for the problem?

Immigration may not be the purview of the states, but in a vacuum created by the absence of federal action, it’s about all what can be expected in result to the frustration and resentments created by decades of neglect. Utah may not win this one with the courts, but Utah’s action has helped to keep the issue at the forefront. If Utah, and other states, keep pushing the boundaries states’ powers under the constitution, we might start seeing the federal government step up to deal with its responsibilities.

(h/t Salt Lake Tribune)

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About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

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