We have laws in this country making it illegal for illegal aliens to remain in this country. It’s that simple. They cannot remain here, they cannot work here, and nobody is allowed to induce, encourage, harbor, transport, or shield from detection any illegal immigrant in the act of coming to or remaining in the country. How is it, then, that states, which are often stripped of their rightful powers over marriage and abortion, suddenly become so powerful that they can not only shield aliens from the feds but invite them to work and get benefits? What ever happened to that mighty Supremacy Clause of the Constitution?
That is essentially the question one county clerk in New York is asking following the state’s decision to issue driver’s licenses to those here illegally.
For years, state and federal officials have been openly violating immigration laws to help promote the cause of illegal immigration. It has taken a Democrat official willing to stand up for the rule of law to finally bring this issue to a head. Erie County Clerk Michael Kearns immediately called foul on the decision of the state government by noting that because he is an official charged with issuing driver’s licenses, the new state law would place him at odds with federal law.
Kearns argues that issuing driver’s licenses to illegal aliens would force him to violate federal law (8 U.S.C. § 1324), which makes a felon of anyone who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place.” That statute also makes a criminal anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” or anyone who “engages in any conspiracy to commit any of the preceding acts, or aids or abets the commission of any of the preceding acts.”
This law has been on the books in some form since 1891. Section 3 of the 1891 Immigration Act made it a felony to “assist or encourage the importation or migration of any alien by promise of employment” through advertisements. Any alien who came in due to such advertisements was deemed inadmissible, and that law was designed to prevent people from encouraging them.
Clearly, these laws are never followed, as members of Congress transport illegal aliens to the capital and states offer them all sorts of benefits and safe harbor. In this specific case of New York driver’s licenses, Kearns is arguing in a lawsuit before the Western District of New York that “by providing driver’s licenses to individuals illegally in the United States and by prohibiting the disclosure of their records, the Green Light Law shields these individuals from detection and substantially facilities their effort to remain in the United States.”
The Fifth Circuit has ruled that Congress intended for §1324 to “broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an alien’s remaining in the U.S. illegally.
What can be more squarely within the statute than offering driver’s licenses and barring disclosure of immigration status? This is what New York’s Green Light Law, which was signed into state law last month, does.
Kearns also noted in the formal complaint that one of the rationales given for the Green Light Law was to “get to and from work” and “ensure that our industries have the labor they need to keep our economy moving.”
There’s just one little problem with that. The entire purpose of the infamous 1986 amnesty bill, Immigration Reform and Control Act (IRCA), was “to combat the employment of illegal aliens. The law specifically makes it “illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers.”
The American people and the Reagan administration reluctantly went along with the first amnesty based on the promise that the ban on illegal aliens working would prevent the next wave. Now we’ve had wave after wave of illegal immigration because those laws are not enforced, and states are even bragging about facilitating their violation of the law.
Chris Hajec, director of litigation for the Immigration Reform Law Institute, told me that this case is a no-brainer. “A stated purpose of the Green Light law is to help illegal aliens get to and from work. That flies in the face of the purpose that Congress had in making it illegal to hire illegal aliens – to reduce illegal alien employment and shut off the jobs magnet for further illegal entry. When state and federal law are in conflict, federal law wins under the Supremacy Clause.”
What ever happened to the Supremacy Clause of the Constitution – that “the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby”?
These are not just any federal laws placing regulations on Americans. These are foundational sovereignty laws governing the entry of foreigners into the country. Immigration is not only explicitly given over to the federal government, but according to James Madison, it was one of the leading reasons why the Articles of Confederation needed to be swapped out for the new federal union.
An illegal alien first has to violate federal sovereignty – the sovereignty of the whole of the union – before he violates state sovereignty. A state, while definitely reserving the right to protect its own sovereignty, as Justice Scalia strongly asserted, has no power to go in the other direction and violate the federal sovereignty in order to allow illegal aliens to remain in the country, where they are then free to live in any state.
As Mr. Kearns fights a lonely battle on behalf of federal powers, one has to wonder why the Department of Justice is not leading the way.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.