I agree with Harry DeMell's basic premise in his June 8 article, "Chamber of Commerce v. Whiting, And Preemption". Immigration is a federal matter and states have no business getting involved, at least as a general proposition. But, except for that fundamental point, I disagree with almost everything else in his article.
First, Mr. DeMell misunderstands the US Supreme Court's Whiting decision. Far from being correct on the law, as Mr. DeMell argues, that decision seized on a single word, "licensing" and gave it a greatly expanded and distorted definition in order to allow states to get into the business of employer sanctions for immigration violations. As Justice Sotomayor said in her dissent, the majority allowed an elephant to go through an opening that was meant to be the size of a mouse hole.
This unfortunate decision may also pave the way for the right wing radicals who dominate the Supreme Court to uphold Arizona's even more pernicious S.B. 1070 "Wo sind Ihre Papiere" ("Papers, please") law on the Orwellian pretext that the state, in imposing its own immigration enforcement regime, is "cooperating" with the federal government.
As an aside, and as I have pointed out before, the same Supreme Court majority has already shown the extremes to which it is capable of going in misconstruing key words of a statute, or in that case, the Constitution, in its decision invalidating Washington D. C.'s gun control law. In that case, the Court took the 2,000 year old phrase "bear arms" (Latin: arma ferre) to mean a private right to keep weapons in one's home. This would have come as quite a surprise to Julius Caesar, who used this phrase in his "Gallic Wars" to refer to weapons borne by soldiers in an army, exactly as the phrase was intended to mean in the 2nd Amendment.
It would also have come a surprise to Virgil, who began his famous epic, the Aeneid, with the words Arma virumque cano ("I sing of arms and the man"). One does not have to be a classics scholar (and I am certainly not) to realize that Virgil meant arms in the sense of war or a battle, not in the sense of a private person keeping a weapon in his closet, which would have made the entire phrase absurd.
I digress, but only slightly. The most dangerous and destructive misinterpretation of a Latin phrase by the Supreme Court may be yet to come, if and when it gets to work on the phrase "subject to the jurisdiction" of the United States in the 14th Amendment. In ancient Rome, juris dictio, (or iuris dictio ) simply meant the power of a magistrate or other official to say what the law is. Today's extreme right wing ideologues (and to be sure, xome 19th Century politicians or judges as well) would have preferred to give a much broader meaning to this term, mixing it up with the idea of citizenship or allegiance, a completely different concept.
This distortion of the plain meaning of the 14th Amendment would be the grounds for eliminating birthright citizenship and creating a permanent underclass of (mainly Spanish-speaking, of course) American-born children without legal status or rights. But this is a subject for a different article.
Mr. DeMell also contradicts himself by arguing that allowing states to opt out of the Federal "Secure Communities" program undermines the doctrine of federal preemption. As he states elsewhere, federal prepemption means keeping states out of immigration enforcement entirely. If federal preemption means letting the federal government handle immigration by itself, what were the states doing getting involved in "Secure Communities" in the first place? There never should have been such a program.
The same goes for INA Section 287(g). Both are nothing other than invitations to let the federal government give up its own sovereignty over immigration and let hordes of state officials illegally invade its territory and destroy its culture - of immigration enforcement. (Haven't I heard this before somewhere?) Certainly, the federal government needs to do a better job of protecting its borders - from the anti-immigrant fanatics and white supremacists in Tea Party Republican-dominated state legislatures who want to to put an end to America's proud history as a nation of immigrants and to turn it into "Deportation Nation".
Mr. DeMell also repeats the all too familiar mantra that the federal government has allegedly not enforced the immigration laws. Tell that to the hundreds of thousands of Latinos, Asians and other minorities who have been deported over the last several years (of course, I have no doubt that two or three people have also been sent back to Switzerland or Norway). Tell that to the tens, or hundreds, of thousands of American citizens who have lost their spouses or parents to deportation. Tell that to the friends or relatives of the dozens of people who have died in immigration custody.
(I am not in any way suggesting that Mr. DeMell opposes immigration by Latinos, Asians or other minorities. I am sure that he does not. I am only pointing out the devastating effect of America's first African-American president's enforcement-only mania on members of this country's rapidly growing and increasingly socially and economically significant minority communities, immigrants and American citizens alike.)
True enough, the immigration laws have not yet been fully enforced, because this is uttlerly impossible, as even the most committed anti-immigrant ideologues know full well. There are still and always will be (unless legalization finally comes) many undeported illegals in the US, just as there were, no doubt, many witches in Salem who remained unburned.
Finally, Mr. DeMell suggests that cities such as New York or Hazelton PA that do not want to be involved in federal enforcement activities are subverting the doctrine of federal preemption over immigration policy just as much as states like Arizona and Utah are subverting federal preemption by going beyond federal law in passing their own, harsher, enforcement legislation. This argument fails the test of elementary logic.
As Mr. DeMell states in his article, state and local governments should stay out of immigration. That is exactly what the so-called "sanctuary cities" are attempting to do. They are simply saying to the federal government: "Go enforce your own immigration laws. Don't ask us to do it for you. We are not the federal government" If this is not separation of powers in action, what is?
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.