Why can’t we seem to resolve the “immigration issue” this country has been debating, off and on, for the last forty years (and which we have debated intensely and incessantly for the last 4-5 years)?

This question has been nagging at me for more than a month now.  It most recently arose during the November meeting of the Clear Lake Area Republicans, when our focus-group discussion identified several issues that we bundle together as the “immigration issue” as the most important local and federal issues we currently face.  Then, in mid-December, I attended a debate about immigration policy between two well-intentioned and well-regarded local Republican leaders sponsored by a local chamber of commerce, which ended-up stirring the issues around rather than providing much clarity. I walked away from both of these events feeling that this issue—or bundle of issues—seems to be a wound that we can’t get to heal, no matter how hard we try.  In fact, the harder we try to close this wound, the more we seem to bleed from it.

This feeling is exacerbated for me, because I deeply believe that the long-term solutions to many of this country’s problems will be solved, if at all, by re-balancing the allocation of responsibility and power of government based on the principles contained in the 10^th Amendment—and yet, effectively addressing the immigration issue has seemed to me to require a more coherent and aggressive federal, rather than a state and local response.  Because Washington seems increasingly incapable of addressing its own responsibilities wisely and effectively, this problem has seemed impervious to resolution, which is why States have tried to act on their own to attack the issue.

But, just when I decided to stop thinking of this issue for a while, some thoughts came to me, which I want to share with you as we move into 2012.  I am not promising that my thoughts provide all the right answers, or even the right path toward any of the right answers.  But, I hope they will provide a different perspective that could get us closer to finding at least some answers.

I think the reason that the present immigration debate seems like it is beyond resolution, is because the current problem arises from a structural dilemma related to the federal structure of our governments.  To understand this dilemma, I first want to digress to discuss that federal structure.

In Federalist 45, James Madison made this following observation about the nature of the different spheres of responsibility and powers delegated to the federal government and retained by the states:

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State government are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Consistent with this view, the Supreme Court, after the Civil War and the passage of the post-war amendments that expanded the scope of federal authority over civil rights of citizens, articulated the difference this way:

… the United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, …, all of which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, …– all which subjects are expressly or impliedly prohibited to the state governments.

Knox v. Lee, 79 U.S. 457, 555 (1871).

While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.

The Chinese Exclusion Case, 130 U.S. 581, 604 (1889).

What these statements show is that the general division of responsibility and power between the federal and state governments was based on a division between authority over external and purely national issues on the one hand, and authority over local issues on the other hand; and on a further understanding that most issues faced by government were local in nature.  With these general understandings in mind, Hamilton, in Federalist 32, describes the further idea of the limited nature of the delegation of authority to the federal government this way:

But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

He goes on to identify three types of exclusive delegation:

…where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance the authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant.

Finally, Hamilton identifies the express delegation of the power to “establish an Uniform Rule of naturalization throughout the United States,” as an example of the third type of express delegation, and this view is elaborated upon by Madison in Federalist 42.  So, what our Founders intended was to give us a federal government vested with expressly delegated responsibilities, which were intended to address external and purely national issues.  One of those expressly delegated issues was Naturalization.

Now, before we return to the primary topic of this post, we need to address the difference between “naturalization” and “immigration”.  Naturalization is the process by which a foreigner, once having arrived in the country, may stay and become a citizen.  Immigration is the process by which a foreigner comes to, and enters the country.  The power over naturalization was expressly delegated to the federal government, in large part because of the problems the colonists encountered with restrictions imposed by Britain prior to the Revolution, and inconsistencies created by the States under the Articles of Confederation.  However, the Constitution is silent as to the power over immigration (except for an odd reference in the provision related to the continued importation of slaves until 1808).  Consistent with this silence, and with the colonists’ anger over limitations on voluntary immigration imposed by Britain before the Revolution, the federal government did not impose restrictions on voluntary immigration until the 1880s.

When the federal government first imposed restrictions upon immigration, the action was not justified as an exercise of the “necessary and proper” power related to naturalization but, instead, was justified as enforcement of treaty provisions with China and Japan, which restricted immigration from those countries. Eventually, the Supreme Court ruled that the authority to regulate immigration was inherent in, and arose from all of the powers vested in the federal government to conduct foreign affairs—or, as the Founders would have said, from the delegation of powers over external issues.  Then, as we in Texas remember all too well, about 30 years ago in Plyer v. Doe, the Supreme Court narrowed the ability of States to regulate the conduct and status of persons who had entered and stayed in the country in violation of federal immigration laws, by requiring that States provide the children of such persons equal access to public education.  And that opinion has led, in large part, to the tremendous strain on States and communities caused by the “immigration problem” in this country ever since.

So what is the structural dilemma I spoke of earlier?  Unlike most of the problems that have arisen from the allocation of power during our history, the current immigration problem is unique.  During most of our history, we have battled over the adequacy, extent, or legitimacy of the power delegated to, or usurped by the federal government from the states or individuals.  Whether the issues have been slavery, civil rights, economic, or social regulation, the debates normally centered on whether the national effects from local actions actually made the issues national in scope, and whether the power being debated could be exercised legally and effectively from Washington.  The current immigration debate is the exact opposite.  The immigration debate involves an issue that is expressly or inherently vested in the federal government to address (whether it be naturalization, immigration, or border security), but which creates negative effects that are almost exclusively local in nature.  From the strain on public schools and hospitals, to the local insurance and job markets, communities are absorbing the brunt of federal inaction.  In the meantime, communities and States have very limited legal means at their disposal to address these effects.

That the federal government has failed, and continues to fail, to address today’s immigration and naturalization issues is beyond serious debate.  It has failed to develop and maintain an appropriate bilateral relationship with Mexico within which border security and immigration could and should be handled.  It has failed to secure our borders to know who is coming and going, and to enforce current restrictions on entry.  It has failed to address the problem of expired visas for students and temporary workers.  It has failed to enforce laws on the books designed to stop the employment of persons who have entered and stayed in violation of law.  It has failed to enforce deportation laws.  It has failed to create positive laws that promote immigration of workers we need for today’s economy.  These failures have created a de facto federal policy of non-enforcement of illegal entry restrictions.

Though this de facto federal policy has created stresses on State and local governments throughout the nation, the problem is most acute where the policy is most abused:  in the States and communities closest to the border with Mexico.  In the meantime (though we should get some clarification from the U.S. Supreme Court on this issue by June, 2012), current legal precedents limit the extent to which States and local governments can address the impact of this policy.  While there is no question that State and local governments can, and constitutionally should enforce federal immigration laws, the current administration has been hostile to even modest attempts by state and local governments to cooperate in or assist with such enforcement.  Beyond basic enforcement, state or local regulations that attempt to regulate the activity of people because of their immigration status, to deny benefits to people because of their immigration status, or to impose additional state-law penalties for violating the federal immigration laws, have rarely been upheld by the courts.

So, while the federal government continues to dither, what can we do?  What should we do?

The simple answer is that we must do what we can do, and what we can do is take back control of our communities and States, consistent with the 10^th Amendment and with the federal structure I discussed above.  To take back this control, we are going to have to embrace a paradigm shift in our thinking, though.  This paradigm shift will require a more realistic and forgiving attitude toward those who have come here, or who have stayed here, in violation of the law; and it will require a more appropriate self-image of ourselves and our role in this process.

First, the realism:  millions of people who crossed the Rio Grande and stayed illegally over the last generation, or who over-stayed their visas, will never go home.  Whether it is because we won’t have the stomach or the resources to do it, we will not deport that many people; and many of them will have planted too many roots here to ever leave voluntarily, no matter how bad the economy gets.  Moreover, for those who have established homes in the Southwestern U.S., why would they go home when they can build a better life in a place that is still culturally and historically familiar to them?

Second, the forgiveness:  except for our most serious crimes, such as murder, every crime has a “statute of limitations” period, after which someone can no longer be prosecuted.  Crossing the border and staying without complying with federal law in order to work and make a living are crimes, but they aren’t murder.  Just as society forgives other crimes over time, we need to begin forgiveness (especially if it comes with repentance, such as compliance with payment of fines and prohibition against citizenship).  We also need to remember that one of the hallmarks of our legal rights has been the principle that the “son is not liable for the sins of the father,” which is embodied in the Constitutional prohibition against bills of attainder, and to stop condemning children for the crimes of the parents.  Finally, we have to understand that all of us—citizen and illegal immigrant alike—have been harmed by the failures of the U.S. and Mexican governments to address the problems that have caused and attracted this continued exodus into the U.S.

Third, and maybe most importantly, we have to stop wallowing as victims over this issue.  For years, we have seen ourselves as the victims of a wave of illegal activity without protection from our federal government, and, to add insult to injury, we’ve seen ourselves as having to support the “villains” with public benefits.  In response to this feeling of victimization, we’ve come to sound and act collectively like “Inspector Javert,” the character from Victor Hugo’s Les Miserables, who eventually loses his soul over his quest to bring the petty criminal Jean Valjean to “justice” long after Valjean had paid his penance.

Ladies and gentlemen, these “villains” are our neighbors, regardless of who they are, where they came from, or how they got here.  And, as I noted before, most of them and their children will be here a very long time.  The Democrats and other organizations know this, and they are advocating that these neighbors remain separate from the rest of the larger community, and, therefore, dependent on unions, government and their political party for years to come.  As long as the Democrats can maintain the federal status quo, and we refuse to engage with these new neighbors, we condemn these newcomers to become wards of the long-term Democratic strategy for our country.

So, if the federal government won’t act, the paradigm shift requires us to use the principles of the 10^th Amendment positively and aggressively to build better communities for the future.  To accomplish this shift, we will have to take control and build neighborhoods with these new neighbors.  The only way to build these bonds of neighborhood is through assimilation, and real assimilation is hard work—and takes both parties to make it happen.

That means, it is time we roll-up our sleeves and help our new neighbors to assimilate:  to privately establish the network of churches and private organizations that help neighbors and build communities; to teach English and help them become literate in our culture and history; and to mentor the establishment of private businesses and employment through which they can pay taxes, and support the public institutions that now support them.  We can not, and should not, reward the adults among them who committed the initial crime by granting them amnesty through a citizenship path (and we couldn’t do that anyway because that is the essence of the power of naturalization delegated to federal responsibility), but we must begin to fold their families into our neighborhoods so that their children—who will stay here because this is the only home they have known—become productive neighbors, and their children and grandchildren become productive citizens.

I know this paradigm shift does not address the actual needs at the federal level.  I do not address the federal problems, because, frankly, we know what needs to be done to secure the border and re-gain control over the legal flow of people into this country.  Our elected leaders in Washington will either have the will to pass this legislation, or we will have to keep electing new leaders until we find those who will.

But we can not wait for the stalemates in Washington, and between Washington and Mexico City, to resolve themselves before we begin to retake control of our lives and our communities.  That is the purpose of this idea of the paradigm shift—to use the ideas of the 10^th Amendment to positively address the problems created by federal inaction and build stronger citizens and communities in the future; rather than to use the 10^th Amendment as a negative argument to joust with the federal authorities over whether and how to should enforce federal law.

Some may label my paradigm shift as amnesty by another name, but it is not.  Amnesty, or other such regulations, deal with naturalization, and that is a federal responsibility.  In fact, if my idea would be implemented, there may indeed be neighbors who we help who eventually will be deported if and when the federal stalemate ends.  But the conditions of our schools and our communities, and the demands on our local infrastructures, require that we take control of this situation here and now where we live and work.  Frankly, this is what the Founders would have expected us to do.

I know many of you will disagree with what I have written here.  Do me a favor—read it once, give it some thought, then read it again.  Afterwards, give me your comments and let’s start a dialogue on this important issue.