Posted on 11/17/2015 1:51:12 PM PST by conservativejoy
Long winded. Except that Congress passed a law some years back allowing unlimited immigration at the President’s discretion, and any vetting to be what the President says it is. This then became a matter of foreign policy in which the President has the power to make it whatever he chooses. Over foreign policy the governors have no legal say. So on to SCOTUS where the governors stand only a slim chance of winning, depending on the particulars, the case, and any existing case law.
A 5-4 decision for the governors at best, but if Obama really wants this to happen he can always stuff the Court.
Oh jeez...1980 was when the despicable Jimmah Carter let in hordes of Marielitos from Cuba as a gleeful Fidel Castro emptied his prisons of all his hardened criminals.
That Refugee Act would have been passed by a DemoRat Congress.
Could get interesting. Lock & load, all you “infidels”.
This one here is ‘locked and loaded’ and ready also with bacon grease!!!
Yes, Jimmah signed it. Since then over three million refugees have arrived, mostly from the Soviet Union and Vietnam. And, of course, the Marielitos. I’m not an expert on this; this is just what I have been reading the last hour.
Since USA citizens, evidently including state lawmakers and governors, tend to be clueless about their countrys history, its not surprising that state versus federal government constitutional authority to regulate immigration, a major issue during the presidencies of John Adams and Thomas Jefferson, has been completely forgotten.
More specifically, regardless of PC interpretations of the Constitutions ”uniform Rule of Naturalization” Clause (1.8.4) used to justify federal immigration laws, while state sovereignty-ignoring Adams signed a constitutionally indefensible federal immigration bill into law, both Jefferson and Madison, Madison generallly regarded as the father of the Constitution, wrote that such a law is unconstitutional in the context of state sovereignty. This is evidenced by the excerpts below.
Here is the relevant excerpt from Jeffersons writings.
” 4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that ”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 act of the Congress of the United States, passed on the - day of July, 1798, intituled ”An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force [emphasis added].” Thomas Jefferson, Draft of the Kentucky Resolutions - October 1798.
Here is the related excerpt from Madison's writings from the Virginia Resolutions.
"That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the ”Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, .... . .
. . . the General Assembly doth solemenly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people [emphasis added]. ” James Madison, Draft of the Virginia Resolutions - December 1798.
Thanks for the relevant history on this issue.
Saving this very good article. Thanks for posting it!
Your welcome! Post 25 gives some very good history on the subject.
With regard to calling up the National Guard - NOW WE KNOW WHY Home Land Security has so many weapons — remember BHO said (paraphrasing) we need a domestic army as powerful as the regular army.
ARE YOU SCARED YET?????
The states are rediscovering the 10th Amendment. Bout time.
It also explains why he says gun control will be the main focus of the rest of his administration. He is desperate to disarm Americans.
He spelled "impeachable" wrong. And on this issue, it could stick.
Okay .. I totally understand.
You’re lucky you have people you can call .. I’m dealing with Governor Moonbeam .. and he’s not stopping the influx of refugees .. just like he doesn’t stop Hispanics from across our Southern border. And .. Hispanics also bring their set of undesirables .. namely MS-13 gang members.
Sorry your living in a State like that...
This isn’t over foreign policy but, rather, national security.
“Over foreign policy the governors have no legal say.” Governors DO have legal requirements to defend their citizens from all enemies, both foreign and domestic.
These ‘refugees’ aren’t even coming as families.
Correct, the Congress has delegated all sorts of immigration related powers to the President.
We can argue theory on whether doing so is Constitutional or not, but functionally there’s mountains of case law precedent supporting Congresses ability to delegate powers to the President. IOW it’s a fait accompli. Again from a practical not theoretical perspective.
Make of it what you will but the law is clear - since this is a matter of Presidential digression (and as such a foreign policy plank), he and he alone decides, unless Congress rewrites the law and he signs it - unlikely. National security also falls under the President’s authority. The States long ago ceded their authority to override a Presidential decision - see US Civil War.
Nah, this act by Obama is totally open to nullification by the states.
If nothing else, each state currently challenging this can simply act on the principle of anti-commandeering. There is nothing - at all - illegal about a state refusing to allow ANY state personnel, facilities, property, etc. be used for the purpose of enforcing a federal law.
Now, the Refugee Act of 1980, and the associated paragraphs in the Immigration and Naturalization Act, are unconstitutional on their face, and as the article says, they are quite liable to being nullified by the states.
Further, this law is not actually just a matter of foreign policy, thus granting the President unlimited purview. It involves Congress’ power to make rules for naturalization. IIRC, the courts have taken a pretty dim view of laws in which Congress has granted the executive branch broad discretion in the *application* of a law (as opposed to *enforcement,* which the courts have generally been more willing to accept a broad definition). In other words, while Congress can often grant the executive broad powers for the purpose of enforcing a *specific* provision of a law, it does not have the power to grant the executive branch broad powers to *interpret* or to *decide the applicability of* a law. If I’m remembering correctly, there have been several cases where such broad applicative powers have been struck down as violations of separation of powers. It is likely that a legal challenge here would do the same.
But, as noted above, these states can nullify. They can declare it null and void BECAUSE the law is unconstitutional, and there is little aside from cutting off their highway funds or trying to invade these states that the FedGov can really do about it. That includes up to direct interdiction. If they just settled for the anti-commandeering route, FedGov would still have a devil of a time trying to enforce this outside of the states that are voluntarily going along with this.
Do it. Send them all to DC.
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