Immigration, and the "Boomerang" of State's Rights

By Yomi Faparusi Sr., Esq., MD, PhD

One of the most significant issues of our day, and a virtual fourth rail in politics is immigration reform. Immigration is regulated under the Immigration and Nationality Act (INA) created in 1952 by the McCarran-Walter bill, Public Law No. 82-414.[1] Hence, it suffices to say that immigration is a federal issue and as such it would appear that States have no authority – or, colloquially speaking – no business legislating in this domain.


The question arises: is the preceding statement wholly factual, especially when the Federal Government has chosen to take a lackadaisical posture in enforcing the immigration laws in the books? If that indeed was the case, that the states had no enforceable interest, you would not be reading an article on the tenth Amendment and immigration here. We DO have a problem. It is not far-fetched to say that the Federal Government has constructively abdicated this duty to the States, by its lukewarm approach to immigration enforcement – often, for political reasons. Arizona, Alabama and Ohio are just a few of the states moving to enforce laws already in place, but completely ignored by those elected and appointed to enforce them.



Imagine a tenant informing a landlord repeatedly that the roof of his home or apartment is leaking and that the tenant stands the risk of losing valuable property if the leak continues. The landlord is a corporate management entity with its headquarters in another state and made promises that it would fix the leak whereas the landlord has not acted on its promises despite the tenant’s desperate pleas. At the same time, the leak is getting bigger and still there is no effective response. The tenant takes the reasonable step of fixing the leak and notifies the landlord. The tenant expects reimbursement for the repairs but instead the landlord sues the tenant.

Such is the standoff today in Federal vs. State immigration enforcement.

Lately, the relationship between the Federal Government and some border states is like that of a Landlord (Federal Government) and the Tenant (States) described above. Many states along the border of the United States and Mexico have been left exposed to the consequences of a porous border and a Federal Government trying to decouple border security from immigration. It is not news that we have witnessed crime spilling across the border due to the drug wars and increasing the crime rates in the towns adjacent to the border. If there is going to be true immigration reform, it starts with securing the border.


The recent GOP presidential debates have witnessed testy exchanges on the issue of immigration especially with regards to what to do with the millions that are in the United States illegally. As politically-juicy as the candidates’ answers may be and as energizing as it has been rallying some groups of conservatives, debating how to handle these millions is essentially putting the cart before the horse. It can merely approximate an abstract endeavor, when the fundamental problem of securing the border has not first been addressed. Securing it has become the primary issue today because, in addition to its correlation with illegal immigration, it is a gauge of our homeland security as a whole. What stops a terrorist from entering the United States through our porous borders? Right now, random checks and searches is all.

As conservatives who appreciate and empathize with the burden placed on our fellow citizens along the Border States, we should be pressing our candidates about sealing the border. More emphasis should be put on the details of their plans as opposed to mere rhetorical promises that have not been vetted for feasibility or reasonableness.

This section is not directed at ascertaining the merits of any candidate’s plan but it serves to illustrate that it may be easier said than done. For example, fencing the entire length of the border has been proposed but it is becoming clearer that such a fencing plan is largely flawed because of logistic and geographical limitations. Furthermore, assuming the terrain was such that one could fence the entire length of the border, then arises the question of how deep should these fences be built, after all one could construct a tunnel underneath. The cost-benefit of a physical fence along the entire southern border is less than the creative approaches others have taken.

The real and volatile issue in immigration is the messaging whereby there often appears to be little effort made to draw a distinction between “legal” and “illegal” immigration, because of the current economic climate. It is not uncommon to see some people go further and argue against legal immigration so as to preserve jobs for American citizens. Likewise, some sections of laws passed by states and localities, while well-intended to address crime rate spikes, have been too broad or vaguely-stated. Thus, it has created a false inference of targeting a particular segment of the population and has occasionally resulted in the local Chamber of Commerce opposing these laws because of their perception of collateral effect on local business interests. [2]

Unfortunately, this has also been spun by the liberals to brand Conservatives and Republicans as anti-immigrant, a tactic that has worked effectively for decades and continues to pay huge political dividends to the Democratic Party. The chatter amongst immigrants is that every group – except the Native Americans – has been immigrants at some point in their ancestry. As a result, when many immigrants, especially those that are minorities, become naturalized citizens, they register overwhelmingly as Democrats. However, this is indeed an ideological paradox because immigrants tend to be quite Conservative in their personal philosophy. As a result, the Conservative tent is barely getting broader compared to the liberal side of the aisle.

Added to this is the fact that many of these immigrants originally come from countries where over 80% of the population vote, hence voter turnout here in the U.S. is disproportionately high.

A political reality of the skewed voting percentage of this bloc is the potential to tip the results in favor of Democrats; this is most impacting in “swing states”. Conservatives have to be more tactical in messaging on immigration, especially with the upcoming general elections because change only comes with winning; or rephrased, “the party in power sets the rules.”

There are, however, several aspects of the immigration process that create ambiguous complexity, making the solution to the immigration debacle anything but simple. A common assumption is that nearly all undocumented immigrants are Mexican. Therefore the emphasis is almost exclusively on the southern border. So what of the northern border with Canada and its security? Since it is almost impossible to get an accurate figure of undocumented immigrants, it is reasonable to say that while most are Mexicans, there are other countries that have sizable representation of their citizens amongst undocumented immigrants.[3] Russian, Chinese, even common European ethnicities are found among this demographic. Therefore, the porous border is not the only reason there is a record number of undocumented immigrants.

There is a system of issuing visas that gives preference to some countries over others. Citizens from less-preferred countries, usually the developing nations, go through a more rigorous system to get a visa and often times are denied. In contrast, many developed countries have agreements with the United States whereby their citizens get visas at the point of entry, if the length of stay is less than 90 days. This means the burden of convincing the embassy officials to get a visa coupled with the fear of a future denial has caused many to overstay their visas. The process must be overhauled if we wish for improvement, especially the extremely slow processing time for approving immigrant petitions filed for beneficiaries abroad. To be clear, this is not making excuses for illegal immigration but rather bringing to light some factors that are not discussed in this otherwise hot debate.

The case of Daniela Pelaez has demonstrated the fundamental truth of the Immigration debate- conservatives are divided on many provisions of the DREAM Act, most especially the path to citizenship. However, the fervor of the topic of immigration has caused many politicians to camouflage their true beliefs into a hue of politically-correct positions. What we have seen is a spectrum of viewpoints: one end is just allowing certain undocumented immigrants brought to the United States as minors to enjoy the benefits of in-state tuition but no path to becoming citizenship whereas the other end of supports citizenship based on military and educational exceptions. Naturally, somewhere in between are those politicians who support just military exceptions but not the educational.

The Case of Daniela presents two results that are problematic: the wrong way to do the right thing or the right way that achieves the wrong outcome. Some were dismayed by the position taken by Senator Marco Rubio in meeting Daniela, as well as a number of elected officials from Florida intervening on her behalf, like Rep. Ileana Ros-Lehtinen. Ms. Pelaez was recently granted a two-year stay of deportation, making it not a reprieve but a postponement of her predicament. I will briefly discuss some uncomfortable aspects of this case.

The most common reason given for barring undocumented immigrants from a path to citizenship is that it rewards breaking the law. As a result, it has come to be labeled the toxic word, “amnesty.” When a minor is brought in illegally by the parents or a child overstays because of the parents, who has broken the law – the parents, the child, or all the above? To illustrate the complexity is the fact that Daniela’s dad, who arguably broke the law, is now a permanent resident. If we assign a lesser level of culpability to minors in Criminal Law and generally treat adults differently from minors in law or the society, why do we struggle to carve an exception to minors who had no say in the transaction that made them undocumented? This is probably because immigration has become a politically-volatile issue; there are fewer jobs to go around and the fact that nothing is being done to secure the border makes any discussion on what to do with undocumented immigrants an ill-timed debate, uncomfortable for voters, business leaders and politicians alike.


States cannot be expected to sit on the fence, so to speak, nor should the State legislators allow the Federal Government to bully them into abandoning their quest to pass immigrations laws that preserve the interests of their states. A State does best in self-determination if the Federal Government does not arbitrarily meddle in its affairs for political reasons. Alabama represents a great example of the shifting of equilibrium that may occur when a State passes immigration reform laws.

When Alabama passed the Hammon-Beason Alabama Taxpayer and Citizen Protection Act,[4] it was quite clear that it would have detrimental consequences on the children of undocumented immigrants and those business interests that rely on migrant labor. As such, it was not a surprise that the business organizations in urban areas called for a revision of the law. One can easily opine that businesses which hire these undocumented laborers are breaking the law to start with. However, it is another glaring theater of the conflict between what is ideal and what is real. The argument that these are jobs Americans do not want to do has yet to be disproven, so is it another classic situation of necessity, or is it just doing the right thing the wrong way?

The truth of the matter, and somewhat the reality of today, is that any immigration law passed by a State will be presumed to have discriminatory intent in the court of public opinion, no matter how its written, how limited its scope or necessary its passage. Thus, extra care should be taken in the legislative debates not to use language that could be considered, down the road, as adding credence to the notion that the bill was aimed at a particular group of people. Furthermore, whenever a law adds any burden on regular law-abiding citizens, it has the effect of causing the law to lose the support of the citizens. Finally, and most importantly these laws have to be narrowly construed, not sought to be “catch-all provisions.” As Alabama’s Attorney General Luther Strange has suggested, making tactical changes ensure laws are “easy to defend in court”.

It should be more about what Conservatives are for and not about what they are against; pro-legal immigration. We have real problems today because of yesterday’s politics. Something must be done, but not everything must be done right away. The right approach should be tactical; the messaging must be sincere; the solutions have to be simple and flexible. The immigration debate is one of the most tiresome, but important exchanges of our generation, and Conservatives must do a better job at addressing the right issues at the right time, and engaging their friends and neighbors to understand it beyond the hyperbolic rhetoric they find in social media. We have real solutions, we now need leaders that enact them with the support of an informed public.


[2] Forbes. Immigration Shootout At The Local Corral. July 19, 2007. http://www.forbes.com/2007/07/18/immigration-arizona-congress-biz-beltway-cz_jn_0719beltway.html (Accessed March 9, 2012)

[3] Michael Hoefer, Nancy Rytina and Bryan C. Baker. Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009. Office of Homeland Security, January 2009. http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf (Accessed March 9, 2012)

[4] Official text of HB 56 from the Alabama State Legislature. http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm (Accessed March 14, 2012)
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