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 entities designated in the Constitution to protect the States from invasion.
Even though the word immigration does not appear in the Constitution, the federal government claims that anything relating to “immigration” and the border is vested exclusively in that government. In other words, the States are prohibited by the Constitution from exercising any power that touches on these issues.
During the debates in the Virginia State Convention of 1788, John Marshall made the following statement concerning the constitutional prohibitions on State power:
“The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article.”
Marshall stated that if the States possessed a power prior to the adoption of the Constitution and a like power was granted to the federal government, the States retained a concurrent power unless there was a conflict in the exercise of power or there was a clause that specifically prohibited the States from exercising the power.
Alexander Hamilton made this observation several months prior to Marshall. In Federalist Essay No. 32 he wrote:
“The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequences of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.” [Bold added]
In Essay No. 82, Hamilton restated this principle and noted that there were only three instances where the “exclusively delegated” rule would apply:
“The principles established in a former paper teach us that the States will retain all preëxisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.” [Bold not added]
As stated by Marshall and Hamilton, the States retained every preexisting power that was not exclusively delegated to the federal government. The exclusively delegated rule, as defined by Hamilton, has no application to the States concerning illegal aliens and their borders.
Marshall and Hamilton also noted that all of the constitutional prohibitions on State power are contained in Article I, Section 10. A review of this section shows that it does not contain a single clause that places any restraint on State power concerning illegal aliens or protecting their borders.
In Article I, Section 10, Clause 3 the States have the power to engage war when “actually invaded, or in such imminent Danger as will not admit delay.” How could the States have the power to engage in war, independent of the federal government, but not have the civil authority to protect their borders?
Even if the federal government had been granted authority over foreigners in the several States, the States would not be precluded from exercising this power as well.
Since the Constitution prevents the States from maintaining a standing army, without the consent of Congress, in times of peace, the State force contemplated in Article 1, Section 10 is the State militia. Thus, the States have the constitutional authority to use the militia to protect their borders.
It should be noted that the Constitution only grants the federal government limited powers concerning use of the militias. Congress has no constitutional authority over these militias unless and until they are called into the actual service of the United States. When not in federal service, the States have exclusive authority over their militias.
This principle was discussed during the debates on the Constitution. In the Virginia Ratifying Convention of 1788, there was a lengthy debate concerning the militia.
Mr. HENRY wished to know what authority the state governments had over the militia.
Mr. MADISON answered, that the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States.
Mr. JOHN MARSHALL The state governments do not derive their powers from the general government… The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away… But there are no negative words here… To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article… But what excludes every possibility of doubt, is the last part of it–that ‘no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.’ When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary.
Marshall, who would later become Chief Justice of the United States Supreme Court, went on to state:
“[T]he power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of i