States Have a Right to Protect Residents from Illegal Immigration

When the federal government stopped enforcing our immigration laws, a number of states – led by Arizona – began passing laws to do the job the feds wouldn’t do.


In 2011, Alabama passed a law (HB 56) authorizing state and local police to check the immigration status of those already apprehended for breaking a law or those caught driving without a license.  It also required every public school in Alabama to determine if an enrolling student was born outside the United States or is a child of an illegal alien (just for data collection, not to deny enrollment).  Last August, at the behest of Obama’s Justice Department, the 11th Circuit Court of Appeals upheld a district court’s injunction against most of the law, including the provisions regarding data collection in schools and those related to criminalizing employing and harboring illegal immigrants.

Yesterday, the Supreme Court refused to grant certiorari to Alabama in its attempt to appeal the injunction.  Justice Scalia publicized his dissent, revealing his desire to overturn the lower court’s decision.  Taken as a whole, it has become almost impossible for states to deal with the crime and costs associated with illegal immigration, even as the feds refuse to uphold the laws.

To begin with, there is a clear need for states to help enforce laws against illegal immigration in such a large country.  When you couple that with the perennial recalcitrance on the part of any administration to fully enforce federal laws, there is no way we will ever enforce the laws in the future without granting states latitude to protect their residents from the ill effects of illegal immigration.  Before Republicans jump into wholesale capitulation mode on the issue, state enforcement must be one of the concessions they receive from Democrats, if they are to ever agree to some form of amnesty.


However, the gang of 8 bill, which has received so much praise from Republicans, actually preempts states from enforcing immigration laws (page 496):

PREEMPTION.—The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, relating to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens. A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the System.

We’ve already pointed out how this bill makes it so arduous for ICE agents to enforce the laws.  This provision will ensure that almost every state law is thrown out in the courts.

Ideally, immigration enforcement should be handled solely by the federal government.  But if there is one lesson we should learn from the past three decades of lawlessness it’s that administrations of both parties are not excited about enforcement.  With so many policy issues being solved on a state level in a more effective and efficient manner, immigration is another issue for which we should allow states to demonstrate their innovative ideas, especially as it relates to interior enforcement within the state’s borders.


The basket case politicians in California might feel that an endless supply of illegals is good for their economy.  But other states should be allowed to secure their streets, schools, and programs from unauthorized visitors.

Cross-posted from The Madison Project


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