Is Congress again failing its job?

Aug 14, 2011

Immigration laws to reduce the massive wave of illegal immigrants into the U.S. now has been enacted in many states -- Alabama, Arizona, Colorado, Indiana, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia and Utah, hardly all southern states. Also, the city of Hazelton, Penn.

Many others are considering such laws, but most are awaiting a determination of the constitutionality of the issue.

The newest, Alabama, takes effect Sept. 1. Like the Arizona law, it empowers police to ask the immigration status of anyone they stop who they have a "reasonable suspicion" might be in the U.S. illegally.

The law requires employers to verify individuals' residency status by checking each one against the federal database, called "E-verify."

This law also requires all public schools to determine the legal status of all students and report their findings to state officials.

Finally, it also makes most contracts with illegals -- business, employment, etc. -- unenforceable in state courts.

On Aug. 1, the U.S. Department of Justice filed suit in federal court in Birmingham saying the law could result in imprisonment of legal immigrants as well as overwhelming federal resources.

The cause for all of these states to take action was appropriately expressed by Alabama Gov. Robert Bentley: "The federal government did not do what it was supposed to do to enforce the laws against illegal immigration."

The current U.S. Department of Justice's enforcement focus is only two-fold -- illegal immigrants with criminal backgrounds and employers knowingly hiring illegal immigrants. The reason? President Obama does not want to alienate Hispanic voters.

By a 5-3 vote, the U.S. Supreme Court in July ruled Arizona had the constitutional right to force employers to report the employment of any and all illegal immigrants. The U.S. Department of Justice had filed suit against this law.

Curiously, the federal government does not attempt to track illegal immigrants in the U.S. However, a summation of the estimates of several states results in an unreliable total of about 11 million; it might be only half that.

The U.S. Constitution is unclear as to whether states can make their own rules regarding the enforcement of federal immigration laws. This was a different issue in 1787 than it is today.

Article 1, section 9 of the Constitution states, "The Migration of Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each such Person."

Although this section was intended as a compromise with the southern states to deal with the issue of slavery, today it still allows states authority to admit migrants -- but is silent on the authority to restrict and it is well past 1808.

The 4th Amendment gives "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches (italics are mine) and seizures, shall not be violated, and ..." This is a protection against vague, suspicion or idle curiosity and has been clarified (and unclarified) many times before the Supreme Court.

Clearly, the laws by all these states go far beyond the current federal enforcement focus.

The American Civil Liberties Union, the Roman Catholic Church and the United Methodist and Episcopal churches have all filed suit against the Alabama law.

How it will end up is quite unclear.

Where it will end up is quite clear -- the United States Supreme Court.

Scamehorn is a longtime resident of Lancaster, Ohio University's executive-in-resident emeritus and former president of Diamond Power. He has traveled extensively in the business arena and enjoys history.

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