| Posted: Wednesday, August 19th, 2009 | Comments (0)

State’s Rights on Steroids

By: Richard Engle

The United States is in the midst of a constitutional crisis. President Barak Obama is eager to violate the constitutional limits on his powers and Congress is welcoming the usurpation. Fortunately, citizens have another line of defense against an abusive national government – the state government.

During the most recent session of the Oklahoma State Legislature a “10th Amendment Resolution” was passed at the request of Charles Key (R-OKC) in the House and Randy Brogdon (R-Owasso) in the Senate. The 10th Amendment Resolution refreshes the collective memory of all those who swore to uphold the US Constitution that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This is the great and simple premise of federalism, that any power not specifically delegated to the US government is reserved to the states. States, on the other hand, are specifically restricted (or prohibited) certain powers by the Constitution. When faced with a constitutional question, the method to use is to seek a provision that overtly allows the federal government to be involved or one that overtly restricts the state. We can never apply this in reverse.

The constitution is designed to grant a few powers to the federal and in doing so took those powers from the states. To be even more clear, if the Constitution does not mention a matter, then the federal government is prohibited in that realm. An example is the subject of education. Education is not mentioned; therefore education is in the purview of the states (or the people) and is prohibited to the federal.

It is the very nature of the compact which is our Constitution. The parties to the compact – the states – agree to give up certain rights and not to give up any unmentioned rights. Just for good measure the above stated 10th Amendment was added.

There are places in the Constitution where a level of cooperation was designed to exist between the states and the federal government. Such areas of delicate cooperation specify which parts are the role of the federal and which are the role of the states.

One such provision is the first paragraph of Section 9 of Article 1 which says, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

Many will peruse their copy of the Constitution and will find some notation suggesting that the provision only applies to slavery and thus the provision is obsolete. The truth is that no amendment changed the article by reference of specificity. The provision is only amended in such manner as it does refer to slaves.

Let us examine the provision again. It states a prohibition against Congress that is to last only until the year 1808. Some will presume that Congress may now do what it was prohibited, as the year 1808 is two centuries past. Accepting that Congress may do what it could not do before; what exactly is it that Congress may now do? The plain language is that Congress may prohibit “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit ...” To apply the amendment prohibiting slavery, we would remove references to ‘importation’ of persons. The article refers to both “migration” and “importation.”

We import property. A person who is imported is a slave. Migration, however, is the moving about by ones’ own volition. Thankfully, the importation of slaves – bringing persons into the nation against their will – is already prohibited. As we are well past the stated date one can see that Congress might also be allowed to prohibit migration of foreign nationals into the nation.

The power to prohibit is not the power to permit. The constitutional provision states that Congress may not prohibit any migration of persons the states “shall think proper to admit ...,” until 1808. After 1808 they might be able to prohibit migrants admitted by the states. The power to admit is reserved to the states, though admittedly the federal government may veto such admission.

The notion may seem radical but, the Constitution does not grant the power to issue visas to the federal government. The 10th Amendment tells us that because the power is not granted to the federal, it is reserved to the states. Article 1 of the Constitution goes further. Because of the cooperative relationship envisioned by the founders, the states retain the authority to grant a visa to foreign nationals specifically. Congress may, at will, reject such visa. Congress may not issue it until and unless the state has already thought “proper to admit ...” the person.

Allowing a foreign national to visit a state does not give such person citizenship. Congress is authorized to “To establish an uniform Rule of Naturalization” according to Section 8 of Article 1. The states have original authority to grant a visa and the federal may only allow or reject the action of the state.

The federal may create naturalized citizens of whomever Congress wishes under a “uniform rule” and foist such person on the states as a citizen. The federal government may not foist a foreign national upon any state against the wishes of that state without citizenship.
One might ask, is there any historic example of this provision in action? Indeed there is. The universally decried “Alien and Sedition Acts” passed by Congress during the administration of President John Adams were clearly unconstitutional. Even today, history textbooks in every classroom in the nation condemn these acts. At the time Thomas Jefferson wrote what came to be known as the Kentucky Resolution which condemned the unconstitutionality of the acts utilizing this specific provision as evidence. Congress did indeed reverse course and repealed the acts and Adams was soundly defeated by Jefferson at the next Presidential election. At that time, it was common knowledge that the states have authority to admit such foreign nationals as it wished and that the federal government had no such authority. Jefferson’s discourse specifically referenced the provision regarding “migration” of free persons visiting the particular state from other nations.

How would this work? Let’s say that a wealthy businessman from the Republic of Succatash wished to visit Oklahoma to vacation at a dude ranch. He would apply for a visa to the state of Oklahoma. Oklahoma would most certainly approve the application and send it to the United States Department of State who would judge the virtues of the visa according to the provisions of acts passed by Congress and would (if not denied) forward the visa to the man in the Republic of Succatash. If he wanted to visit numerous states while overseas he would make application to all of them. This would not impact US citizens in any way because the states are obliged to accept any US citizen. It only applies to foreign nationals.

Is it ever in the interest of Oklahoma to refuse to admit any foreign national? Of course there are those we would refuse on security issues. The federal government already prohibits such undesirable persons and would still do so. If Oklahoma were to grant a visa to Osama bin Laden the federal government would refuse to allow such visa. The interests of the nation are reflected in the federal government’s ability to refuse admission. There is an occasion in which the state’s security interests may not be met by admitting all that the federal would admit.

The Guantanamo Bay detainees, at least those who are not US citizens, can and should be prohibited from entering the state of Oklahoma.

Admittedly, none of those detainees have been convicted of crimes and many question the right of the federal government to hold them at all. Others are convinced that they are terrorists and pose a danger to the people of Oklahoma. Regardless, I would suggest that it is not in the interest of the people of Oklahoma to allow the federal government to forcibly import foreign nationals into our state.

During the recent state legislative session a resolution was passed asking, requesting, pleading with the federal government to withhold itself from bringing Gitmo detainees into our state. The great difficulty I have with the resolution is that it is in the form of a non-binding request. The resolution should have been worded to prohibit the federal government from forcibly importing any persons into the state of Oklahoma against said person’s will.

The state of Oklahoma has the right and the obligation to prohibit the US government from such activity. This is not only states rights on steroids, it is a Gitmo Resolution with teeth!

There are no reader comments about this story

Ad Your Comment: