The battle raging between the federal government and the State of Arizona over its so-called anti immigration law has raised several constitutional issues. It has been asserted by those opposed to the law that the States are precluded from protecting their borders and preventing the influx of illegal aliens because these powers were granted exclusively to the federal government. This assertion is erroneous because the individual States, as sovereign political entities, have the absolute right to protect their borders from illegal aliens irrespective of the Constitution or any power granted to the federal government.

We are constantly told that people illegally entering the country are undocumented immigrants and the federal government has jurisdiction over all matters concerning immigration. This is not the case. In fact, the word immigration does not appear in the Constitution. The only general power granted to the federal government concerning aliens, in times of peace, is the power “to establish a uniform rule of naturalization.” This provision was inserted because there was, in the words of James Madison, “a dissimilarity in the rules of naturalization” among the States. By vesting this power in the federal government, as opposed to the individual States, the Founders ensured that the qualifications for becoming a citizen would be uniform throughout the several States. If the rule were not uniform, one State could impose a different standard than another State or discriminate against immigrants from certain nations. No other power is granted to the federal government concerning this subject.

The federal government also claims the duty of securing the borders of these United States rests solely with the federal government. The Constitution states: “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion…”  [See Article IV, Section 4] If aliens entering into a State from a foreign country constitute an “invasion,” then the federal government is constitutionally mandated by this provision to intervene and protect the State.

The Constitution grants the federal government the power to fulfill this duty in one of two ways. It can either use the military, or Congress can call forth the militias of the several States to repel the invasion. [See Article 1, Section 8, Clause 15] Once Congress calls forth the militia, the President, as commander in chief, has the power to direct the movement of these forces. Thus, the President could constitutionally send the State militias to any State to repel the “invasion” by illegal aliens. However, if illegal aliens pouring into the States do not constitute an “invasion,” then the federal government lacks the constitutional authority to intervene and prevent the States from protecting their borders.

Note: The National Guard is a State military force and is referred to as the organized militia. The so-called common folk who meet certain requirements are referred to as the unorganized militia. There is no federal militia. In addition, there is no specific provision in the Constitution for the so-called Border Patrol to function within the several States. Protecting the borders of the States from illegal aliens has nothing to do with the federal government’s power “to establish a uniform rule of naturalization.” The regular military and the militia are the only entiti