California Senate Votes to Nullify Federal Immigration Law

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Yesterday, the California State Senate voted to prohibit agents from assisting federal immigration officers. As currently amended, the bill’s summary reads

By:  Ryan McMaken

This article first appeared at Mises.org

This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified.

RELATED: “Make Every State a Sanctuary State

One of the few exceptions is a provision allowing California agents to work with federal agents to deport violent felons.

Nullification Works

If it passed into law, this will greatly limit the reach of federal agencies — this is not simply a symbolic gesture. When efforts to counteract federal law requires only that local agents do nothing, it tends to work:

When nullification enjoys either the indifference or support of a sizable portion of the local population, and is based on encouraging government inaction, it tends to work. In the case of marijuana-law and immigration-law nullification, local governments have refused to enforce federal law, and the same was true with anti-slavery nullification. In fact, the slave owners, who were a very powerful interest group at the national level, and who had both the Constitution and the federal courts on their side, were at a lopsided disadvantage with individual states because the slave owners needed more government action and enforcement of pro-slavery laws on the part of state governments. Even worse (from the pro-slavery perspective), enforcement was expensive. The anti-slavery activists, on the other hand, merely needed their state governments to look the other way…

And this, apparently, is what the California Senate understands. They know that the feds can only do so much to enforce federal law on their own, without help from local government. Yes, the feds have their own federal agents, but federal police forces are actually quite small compared to state and local police forces (unless, of course, the feds call in the military.) But big, federal enforcement operations tend to be PR disasters, as in the case of the Bundy Ranch standoff.

It’s always better to get help from the locals, and when they refuse, it’s hard to force their hand.

In effect, such a move by the California government would be similar to that used in Colorado to legalize recreational marijuana. Specifically, the Colorado’s Amendment 64 states:

Notwithstanding any other provision of law the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twenty-one years of age or older.

While this text does not tie the hands to the same extent as the California immigration bill, it has nevertheless had the effect of substantially limiting the enforcement of federal marijuana regulations within the state.

In both California and Colorado, the federal government’s list of options is greatly reduced and the only effective solution may be to greatly increase the federal agencies’ personnel and, of course, their budgets.

Fortunately, even federal spending has its limits.

In response, the federal government will no doubt threaten to do everything it can to harm the California economy and meddle in state affairs.

The California delegation in Congress, of course, loves to do exactly this with other states that aren’t “California” enough for the state’s ultra-left-wing delegation.

Federal Usurpation of Immigration Enforcement

Nevertheless, in this matter, California’s move is well within the spirit of federalism and constitutional law, and basic principles of decentralization.

After all, the US constitution does not grant power over immigration enforcement to the federal government. As Andrew Napolitano explains:

The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.

In 1882, Congress gave itself the power to regulate immigration, contending that although the Constitution was silent on the issue, the concept of nationhood gave Congress the ability to regulate the nation’s borders and thereby control who was permitted to enter from foreign countries and under what circumstances.

Naturalization and immigration are not the same thing, and prior to the late 19th century, managing immigration — not being among Congress’s enumerated powers — thus fell to the states.

This fact does not prohibit state governments from willingly working with federal agents on immigration matters, of course. Indeed, Donald Trump’s executive order on so-called sanctuary cities does exactly this and paves the way for immigration agencies to “empower State and local law enforcement agencies … to perform the functions of an immigration officer.” But, since even the courts recognize it’s unconstitutional for federal agents to seize control of state and local law enforcement agencies, the executive order is forced to concede that locally-based immigration enforcement can proceed only with “with the consent of State or local officials, as appropriate.”

So, what we’re seeing is the decentralization of immigration enforcement — which is, of course, a good thing.

RELATED: “Immigration Policy Must Be Decentralized” 

Those jurisdictions that are enthusiastic about immigration enforcement will engage in more stringent enforcement. Those states that have little interest in assisting the feds on these matters will simply look the other way.

Meanwhile, the immigrants themselves — the ones without the right federal paperwork, at least — will tend to avoid states with heavy enforcement, and stick to those states that do little.

This article first appeared at Mises.org