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Chamber Of Commerce V Whiting, And Preemption

by Harry DeMell

We have gotten use to having every level of government, federal, state, and local, involved in every area of government. This is not a good idea and it is an especially bad idea as in the area of visa, immigration, and nationality law. The recent case of Chamber of Commerce V Whiting __US___ 2011, extends a trend that started in the 1930s encouraging governmental action on multiple levels. The best idea is doing something on one level and doing it right. While I believe that Chamber of Commerce is correct on the law, as written, the loophole congress created when they allowed state action is not good policy. We need to look at our policy of encouraging government action on multiple levels.

As the federal government loses control in the immigration area we create a situation where legislation that extends IRAIIRA becomes increasingly probable.

In the area of visa and immigration enforcement, the federal government has dropped the ball, and state and local governments are picking it up and filling the void. The Obama administration's efforts to increase enforcement come after decades of ineffectual action.

Since the 1930s, we have forgotten the concept of separation of powers. That has taken us to a point, today, where our immigration policies are being reviewed on multiple levels of government with the idea of expanding those duties from federal to include state and local participation.

It is not a good idea for states such as Arizona and Utah, or cities such as New York or Hazelton PA to feel a need to intercede in this area. We need to control our borders and the federal government is the best and only place to do it properly. We do not want every state or municipality enacting or enforcing their own immigration laws. This could lead to a situation where we have hundreds of laws in the immigration area.

New York's recent decision to opt out of the Secure Communities program excellerates this trend to defederalize this area. California is considering a bill to allow local communities opt of the Secure Communities program.

The American people have become result oriented and have forgotten about the process. If we want something done, we do not care where or how it gets done. We demand action of a federal, state, and local level at the same time when it would be better and more efficient if it were done on one level.

We have gotten use to areas such as education, housing, health-care, and transportation being taken over by several levels of government. This of course leads to an inefficient and expensive duplication of efforts. It also often leads to policies that contradict each other.

America has forgotten about federalism and the separation of powers in our need to get what we want now, and at the cost of an erosion of our constitutional protections. This is a politically immature position for the American public to support. It may reflect the failure of our education system to teach the importance of our constitutional values. It certainly reflects upon congress's poor understanding of those separations.

The U.S. Constitution specifically set up a system of separation of powers that the Supreme Court seems to have forgotten about. That separation of powers was meant to protect our freedoms, and there is an implicit recognition that as a people we will try to do the right thing within the area of government responsible for that area. It was a good idea in 1789 and it still is a good idea. Chamber of Commerce V Whiting is correct on the law because congress structured a bill that encourages states to enact their own laws. Implicit in this law is that the federal government is unable to complete this task alone. It was wrong for congress to pass the buck.

If a state sets up it's own army we would agree that this is a federally preempted area, even though the constitution allows for a militia. If a state decided to open an embassy in another country there would probably be no disagreement at all.

Congress should not pass the buck. In the area of visa, immigration, and nationality law, policy and enforcement should be in one place, and that place is the federal government. The problem is that the federal government has not done a good job in this area and international events make this an increasingly important because of economic and security issues.

This is not the article to go into what exactly the federal government should be doing to take control of our borders and implement sane policies in this area that recognize the economic situation and the need to protect America in an increasingly dangerous world. I have tried to address this in other articles for ILW.

Some things are clear. The government has not enforced the laws in the area of employer sanctions. There are insufficient possibilities for employers to get the workers they need and this creates an incentive for illegal hiring. There are too many all or nothing solutions proposed to deal with our visa, immigration, and nationality issues, and the existing federal agencies are not able to cope with the problems as they exist and especially if the problems grow.

We are ignoring a massive refugee problem we face because of a drug war escalating in Mexico and political upheaval in the Middle East and North Africa.

The bar should be looking to congress and the presidency to formulate new policies that will allow the federal government to take charge of this area. If we do nothing or if we give inconsistent leadership we are doomed to a multiplicity of law, regulation and policy that will undermine our control of the borders. We cannot afford a Roe V Wade like debate on this issue.

If we lose control of the borders we face a political backlash and legislation more draconian than IRAIIRA. The public may demand it.

About The Author

Harry DeMell is an Attorney practicing exclusively in the area of Visa, Immigration and Nationality Law since 1977.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.