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July 16, 2013

KING: Immigration: Not more government, better governance

The chairman of the Howard County Republican Party declared recently that we do not have an “immigration problem; we have a Hispanic immigration problem.”

His solution is to penalize employers who illegally hire illegal immigrants and redirect the considerable resources of the Department of Labor and Internal Revenue Service (IRS) to regulating such businesses — reduce the demand and the supply diminishes, is his argument.

I strongly disagree with this county chairman. Enabling and empowering two federal government Leviathans, particularly the IRS, to generate additional time-consuming and costly regulations against businesses, especially small- and medium-sized businesses (where the largest percentage of illegal hiring occurs) is giving the fox the keys to the hen house.

This is not the best solution to the “Hispanic immigration problem,” as the Howard County Republican puts it. A critical component of a comprehensive immigration-reform solution is to increase the public’s understanding and awareness that this issue, along with many others, is not just a so-called "national government" problem. Rather, it is a “better governance” problem.  

In Arizona vs. U.S. (2012), the Supreme Court of the United States ruled against three of four provisions in a controversial Arizona law, which, among other things, provided local law-enforcement officials the authority to detain possible illegal aliens by allowing a check of their immigration status. Referred to as the “show me your papers provision,” it provided latitude to law-enforcement officials to ask for specific immigration and citizenship papers in order to prove an individual is living and working in the U.S. legally.

For more than 100 years the Supreme Court has consistently upheld the various constitutional powers of the federal government to enforce federal immigration policy, including the Commerce Clause (Article I, Sec. 8, clause 3), the Migration and Importation Clause (Article I, Section 9, clause 1), the Naturalization Clause (Article I, Sec. 3, clause 4) and even the War Powers clause (Article I, Section 8, clause 11). These powers, however, are not solely what some scholars contend are the “implied right of the federal government to regulate non-citizens.” Instead, they simply demonstrate that: 1) “The federal government is the national government; and 2) the it has inherent sovereign power to regulate international affairs” including immigration policy.

It was not until the Supreme Courted ruled on the Chinese Exclusion Case in 1889 that the national government took precedent over state governments, especially in the areas that invoke national sovereignty. It was the Court’s assertion then that the national government’s primary focus should be the protection of national public interest, which includes regulation and oversight of aliens in the country.

If this were not clear enough, some constitutional theorists contend that a major source of national immigration power is found in the “Rule of Necessity,” which argues that “federal power over immigration is necessary to the successful operation of the Constitution,” and thus this power, which is effectively an “implied power” covered under Article I, Sec. 8, clause 18 of the Constitution, is de facto inserted into the Constitution.

Further, many scholars claim that national government regulation of immigration policy is justified by “national self-definition,” meaning that because a nation’s citizens largely determine the make-up of a nation’s identity and value set, it is the responsibility of the national government, not the states, to set the policy for who is allowed into the U.S. Whether this argument is racist and discriminatory is debatable but it is clearly used as a measure of national sovereignty in the immigration battle.

Regulation of immigration is one thing; regulation of citizenship is another. The current comprehensive immigration reform bill passed in the Senate but is stalled in the House. It provides citizenship status to the 17 million or so illegal immigrants before invoking stronger anti-illegal immigration laws. This is the case in point.

In order to gain Republican votes, a Congressional bipartisan coalition (the “Gang of Eight”) included nearly $50 billion in additional resources. Yet experts such as former border patrol agents argue that these additional resources will not stop an influx of “criminal illegals” into nearly all 50 states.

Providing amnesty or ease-of-path-to-citizenship status is not going to address the critical problem of preventing illegal aliens from entering the country or reducing the number of “criminal illegal aliens” who currently live and work in the U.S. The national government has not and cannot effectively deal with this immense and growing public-interest concern. It is a problem that encompasses a broad swath of public and private domain and is thus not limited to government jurisdiction alone — whether national, state or local.

What we have then is a governance problem. It is a problem that involves all aspects of society — from the public to private to nonprofit sectors, to families, businesses, places of worship, education and charitable organizations. This is a problem that involves the value system that makes up this nation. It is not just a “Hispanic illegal immigration” problem.

Nor will it be solved in the traditional way, using the worn-out policies. And it certainly will not be solved or even managed properly by using the Howard County Republican's suggestion of granting more national government oversight to rogue federal agencies, such as the IRS, thus hamstringing small- and medium-sized businesses.

— Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, holds the R. Philip Loy Endowed Chair of Political Science at Taylor University.

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