Immigration and the Ladder of U.S. Law

When our Founding Fathers wrote the Constitution in 1787, one of their goals was to create a document to make the Federal government the “supreme” governing entity. Why?

Under the Articles of Confederation, the individual states had all the power. The central government, i.e., the Continental Congress, known after the signing of the Treaty of Paris as the Confederation Congress, could not raise taxes, regulate interstate commerce, establish a judiciary, or even insist that its Continental Dollars were the national currency and order the states to stop printing money. These were just some of the powers that the members of the Confederation Congress lacked.

Hence with writing Article VI, Section 2 of the Constitution, the intent of the Founding Fathers is very clear with the words This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In short, if there is a conflict between Federal law and any law written by a state, county, or municipal government, the Federal law determines the outcome.

Article I, Section 8, Clause 4 gives the legislative branch the power To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States. In other words, the House and Senate write the laws that govern immigration and naturalization law. Put another way, Congress writes all the laws pertaining to immigration and naturalization, not the states, counties or cities.

Article II, Section 1, Clause 8 has the oath the President of the United States makes when he takes office. Each new president must state I (first name, last name) do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

This clause gives the President the power to enforce the laws written by Congress. In Section 2, Clause 2, the Constitution, the President is given the sole power to conduct foreign policy.

Where this gets interesting and legally murky is when state and city governments declare themselves sanctuary cities and refuse to comply with Federal immigration laws and hinder the operations of Federal law enforcement agencies.

This clause is where the President gets to enforce the laws written by Congress. In Section 2, Clause 2, the Constitution gives the President the sole power to conduct foreign policy, i.e. make policy.

Where this gets interesting and legally murky is when state and city governments declare themselves sanctuary cities and refuse to comply with Federal immigration laws and hinder the operations of Federal law enforcement agencies.

While some may argue that prior to and during the Civil War, many northern cities offered sanctuary to slaves fleeing their masters through the Underground Railroad which began before the American Revolution. While on the surface this may appear to be equivalent, it is not. The context is entirely different. One, the slaves were in the country “legally,” even if they were brought to the U.S. against their will.

Two, the intent of the Lincoln and later the Johnson administrations was to make free slaves citizens through the Civil Rights Act of 1866. To ensure that it would be difficult to return to pre-Civil War laws about slavery, the 14th Amendment was passed by Congress in 1866 and ratified in 1868. Its creators wanted to ensure that the Civil Rights Act of 1866 could not be changed.

The question is are those cities and states who claim to be sanctuary cities violation of Federal law immigration laws? Are those government officials issuing orders not to comply with ICE opening themselves up to being prosecuted for obstruction of justice?

This issue will, more than likely, wind up in the Supreme Court of the U.S. The ladder of U.S. law strongly suggests that sanctuary cities/states are violating U.S. immigration law.

If the Supreme Court rules in favor of the Federal government, then those cities and states must comply. If they don’t do so voluntarily, then we have a prima facie rebellion on our hands and a true threat to law and order that will rock the very foundation of our democracy.

Image is from a YouTube Video called the Ladder of the Laws – https://www.youtube.com/watch?v=mmRbriVd0bY