Imagine a state simply saying it will not abide by federal tax laws, territorial integrity of national parks, or national guard deployment orders from the president?
Sounds like a banana republic, right? Well, what is playing out in California, with sanctuary laws for illegal aliens, is even worse, because it violates the integrity of national sovereignty for all of us, allows illegal aliens to benefit from their illegal behavior, and makes the American citizen a stranger in his own land.
Earlier this week, California Governor Jerry Brown signed a bill officially designating California as a sanctuary, declaring the entire state a non-cooperating jurisdiction with detainer requests from ICE. Yes, evidently, private business owners in these blue states can be fined $135,000 for refusing to serve a gay event, but a state can just thumb its nose at federal immigration law and the courts side with the state.
By promising to restrict law enforcement from investigating, detaining, or arresting any illegal alien, California will become an even greater magnet for illegal immigration than it is today. This helps boost California’s representation in Congress because of the current inane policy of counting total population in the Census for purposes of reapportionment. It’s no wonder the San Diego corridor is now overwhelmed with asylum requests. It is no surprise that roughly half of all illegal immigrants reside in five metropolitan areas — all of which are sanctuary cities: New York City-Newark, Los Angeles, Chicago, Miami, and San Francisco-Oakland.
This is one case where crime most definitely pays. In the case of California, it already has an extra five seats in the House due to its illegal alien population. Remember, Obamacare only passed in the House by a 220-210 margin, meaning that illegal immigration directly affected the Left’s ability to take over health care.
Immigration was given to the federal government to prevent states from gaming representation
This is exactly why our Founders assigned control over immigration policy to the federal government. They didn’t want states to artificially inflate their representation by flooding the entire federal union with undesirable aliens. Commenting on the power of Congress (as opposed to states) over immigration, the inimitable Justice Joseph Story explained, “If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.”
While this was written in 1833, every word is speaking to liberals today in states like California that want to increase their representation at the expense of other states. Let’s not forget that once an alien is admitted to the union by one state, he is free to move around anywhere in the country. Thanks to California’s sanctuary policies, a cop in Kansas was killed last year by an illegal set free by Los Angeles police who refused to hand over the criminal alien to ICE.
Roger Sherman, among the greatest of all the Founders, noted during the House debate on the Naturalization Act of 1790 that “it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner” (emphasis added). Sherman was emphatic that federal control was designed to “guard against an improper mode of naturalization” and prevent individual states from flooding the country with immigrants based on “easier terms.”
James Madison, in a 1782 letter to Edmund Randolph, noted that a uniform rule of naturalization from a future federal government would cure the existing problem under the confederation of “the intrusion of obnoxious aliens through other States.” Writing in Federalist #42, Madison elaborates that the federalized power over naturalization solved “a very serious embarrassment” and “defect” of the Articles of Confederation whereby “certain descriptions of aliens, who had rendered themselves obnoxious” can force themselves on several states had they “acquired the character of citizens under the laws of another State.”
Thus Justice Scalia was right when he said that “the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it” (U.S. v. Arizona).
Illegals should never have been counted in the Census
It appears that the Trump administration is taking the first steps to cleaning up the mess with the Census. The Justice Department requested that the Commerce Department (which oversees the Census Bureau) include a citizenship question in the upcoming decennial survey, as has always been included in the long-form survey until the Obama administration eliminated it. Putting aside the immigration debate for a moment, the DOJ needs to know the number of citizens in a given district when engaging in oversight of the Voting Rights Act and fair practices in redistricting.
However, one would hope that identifying the disparity in districts between citizen voting-age population and non-citizen population would expose the inherent unfairness of including non-citizens, particularly illegal aliens, in a Census designed to affect the foundation of elections. In the long run, Congress should pass Warren Davidson’s constitutional amendment, which would amend the Fourteenth Amendment to ensure that only citizens are counted in the Census.
While it would take a constitutional amendment to discount legal permanent residents, as the Fourteenth Amendment calls for counting “persons,” I argue in chapter 8 of Stolen Sovereignty that there is no way the drafters of the Fourteenth Amendment intended to count illegal aliens. As such, the problem of sanctuary cities benefiting from lawlessness can be rectified by statute, or perhaps even by administrative changes. Former Sen. David Vitter proposed such legislation when he was in the Senate.
No, the Constitution doesn’t allow illegals to force their will upon us
Before the courts became lawless on immigration, they ruled that any illegal entrant, “although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate” (U.S. v. Ju Toy, 1905). Illegals were deemed to be physically outside our borders because it was intuitive to everyone in the legal system that a foreign national cannot unilaterally assert his right to enter, thereby forcing upon us electoral changes affecting reapportionment.
Moreover, the entire purpose of the Fourteenth Amendment — counting “whole persons” as opposed to the original “three-fifths” formula — was to prevent southern states from disenfranchising newly minted black citizens while benefitting from their inclusion in the Census. The Framers certainly never envisioned this being used as a tool to disenfranchise the entire citizenry — black and white — at the hands of illegal invaders.
Furthermore, section 2 of the Fourteenth Amendment was never intended to include those in the country who resided in another state, even American citizens, who happened to be temporarily passing through a state during the time of the Census. It wasn’t intended to include legal temporary residents either. Conversely, it wasn’t intended to exclude those permanent residents or citizens temporarily sojourning or vacationing in another country or state. As John Noonan, former Ninth Circuit judge, said in testimony before the Senate Judiciary Committee in 1985, “If there was an invading army on American soil, one does not suppose the Bureau of Census would count the enemy troops.”
Much like the Citizenship Clause, erroneously used to grant birthright citizenship to illegal aliens, the Apportionment Clause was not designed as a literal phrase without qualification. It was meant to include domiciled permanent residents who had complete allegiance to the United States and lived here indefinitely with the intention and legal ability to seek citizenship.
Judge Timothy Farrar, a New Hampshire judge and law partner of Sen. Daniel Webster in the mid-nineteenth century, in perhaps the earliest treatise written on the definition of the Fourteenth Amendment, wrote that “certainly persons who are at the time actual citizens of other states in the union cannot be included [in the census]; and, for much stronger reasons, persons who are citizens of foreign states cannot.”
No rational person can honestly assert that millions of illegal aliens, almost all of whom are citizens of foreign countries with allegiance to foreign powers, in this country in violation of our laws and the consent of the people are included in the Fourteenth Amendment.
And either way, between Congress’ plenary power over immigration, Congress’ Article I Sec. 2 power over “the actual enumeration” and how it’s directed, its Section 5 powers to enforce the Fourteenth Amendment, and its foreign commerce powers, Congress can certainly limit the classification to legal permanent residents. As Farrar wrote, “and of course [the scope of persons counted in the census] should be authoritatively construed by the law-making power.”
Back in 1989, when the problem of illegal immigration and the distortion of our representation was a fraction of the problem it poses today, the Senate passed an immigration bill that contained a provision excluding illegals from being counted in the census. The amendment was sponsored by Sen. Richard Shelby and co-sponsored by Sens. Grassley and Cochran, among others who are no longer serving. Even Harry Reid voted for it. The bill was later hijacked in conference and transformed into an immigration expansionist bill that was signed into law in 1990.
If illegal aliens can permanently distort our representation, debase our franchise, and dilute our political power, there is no sovereignty, republican form of government, or self-respect as a nation-state. If a state can be rewarded for disenfranchising the citizenry of this country and thumbing its nose at our sovereignty, then we have no nation at all. There is no issue of greater importance than restoring the franchise to where it rightly belongs — with the citizens of these United States.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.