Publius-Huldah's Blog

Understanding the Constitution

The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & Concurrent Jurisdiction Explained.

By Publius Huldah.

The Sovereign State of Arizona recently made a law which provides for the cooperative enforcement – with the federal government – of federal immigration laws throughout Arizona. The People of Arizona are suffering terribly from massive Invasions of their Southern Border; and because the federal government refuses to repel the Invasions, the People of Arizona are forced to defend themselves.

Here is the text of the amazingly innocuous Arizona Law. Read it, and you will know more about it than the Attorney General of the United States, Eric Holder! On May 13, 2010, Holder testified before Congress that he hadn’t read the Arizona Law; even though on previous occasions, he attacked the Law as “an unfortunate one”, which is subject to “potential abuse” and the “possibility of leading to racial profiling”. In short, he, Eric Holder, doesn’t think the Arizona Law is “necessarily a good idea”.

Of course, Holder’s personal views are irrelevant when it comes to official Acts of Sovereign States. The only legitimate Question is this:  Does the Arizona Law violate the U.S. Constitution?  And the clear answer to that Question is, “No!”

1. Let us look at the “supremacy clause” of the Constitution. Article VI, clause 2 says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … 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. [emphasis added]

Note the two emphasized phrases, for therein is the Answer to the Question.

a) First, we must learn that only Laws made by Congress which are pursuant to the Constitution qualify as part of the supreme Law of the Land.  Alexander Hamilton says in Federalist No. 27 (last para):

…the laws of the Confederacy [federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws… [emphasis in original]

In Federalist No. 33 (next to last para), Hamilton says:

…But it will not follow…that acts of…[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the..[the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…[Art. VI, cl. 2] EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [emphasis in original]

In the next paragraph, Hamilton points out that a law made by Congress which is not authorized by the Constitution,

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution….

So! When Congress makes laws which are not within its enumerated powers, such pretended laws are mere acts of usurpation and have “supremacy” over nothing.

b) Second, note that Art. VI, clause 2 also shows that only laws of States which are Contrary to the Constitution must fall.  States may make whatever laws they wish (consistent with their State Constitutions) except as prohibited by the US Constitution. Laws specifically prohibited to the States are listed at Art. I, Sec. 10.  States also may not properly make laws which contradict the Constitution. For example, a State Law which purported to permit 25 year olds to be US Senators would contradict Art. I, Sec. 3, clause 3, and thus would fail under the “supremacy clause”.

So Remember! When a State Law is not contrary to the Constitution, it remains in full force & effect and is not affected one jot by the “supremacy clause”.

2. Let us now look at “exclusive jurisdiction” – those very few matters in which the federal government has sole authority to act. Obviously, when Our Constitution bestows sole authority on the federal government, then any State Law to the contrary would fall. Hamilton explains this in Federalist No. 32 (2nd para):

…the State governments …clearly retain all the rights of sovereignty which they before had, and which were not… EXCLUSIVELY delegated to the United States. This exclusive delegation …of State sovereignty would only exist in three cases… [emphasis in original]

Hamilton then describes the three cases where the Constitution grants to the federal government exclusive authority to act:

(a) Where the Constitution expressly grants an exclusive authority to the federal government; as in Art. I,  Sec. 8, next to last clause, which grants to Congress the power to “exercise exclusive Legislation in all Cases whatsoever,” over the District of Columbia, Forts, dock-Yards, and other needful Buildings.

(b) Where it grants an authority to the federal government, and prohibits the States from exercising that same authority; as in Art. I, Sec. 8, clause 1, which authorizes Congress “To lay and collect Taxes, Duties, Imposts and Excises”; and Art. I, Sec. 10, clause 2, which declares that, “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports….”

(c) Where it grants an authority to the federal government, to which a similar authority in the States would be absolutely & totally CONTRADICTORY and REPUGNANT; as in Art. I, Sec. 8, clause 4, which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.

So! These three are the only cases where the federal government has exclusive authority. In all other matters within the ENUMERATED powers, the federal and State governments have “concurrent jurisdiction”.  [Of course, as shown below, the States governments have exclusive jurisdiction over most of the matters within their respective Borders.]

3. Let’s look now at “concurrent jurisdiction” – where the Constitution authorizes the federal government to act and does not prohibit the States from acting on the same matter. Here, the federal government and the States have “a concurrent and coequal authority (Federalist No. 32, 3rd para)!  Might there be some conflicts when both the federal government and State governments are acting on the same matter?  Yes! But as Hamilton pointed out:

It is not …a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can …alienate and extinguish a pre-existing right of sovereignty [in the States]. (4th para)

The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor…[This]is…clearly admitted by the whole tenor of the…proposed Constitution. We there find that, notwith-standing the …grants of …authorities [to the federal government], there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States…[Art. I, Sec. 10] consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the…[proposed Constitution], which…refutes every hypothesis to the contrary. (5th para)

So! Even where the Constitution delegates a power to the federal government, the Sovereign States retain a concurrent and coequal authority over the same matter unless the Constitution specifically prohibits the States from exercising that power.

4. Now let us look at Art. I,  Sec. 8, clause 4.  This is the clause which some in the “open borders” crowd claim “trumps” the Arizona Law. Well, well!  Theirs is a silly argument indeed, and we can dispose of it easily.  The clause reads:

The Congress shall have Power … To establish an uniform Rule of Naturalization…

James Madison explains in Federalist No. 42 (4th para from end) the reason for the clause. Under the Articles of Confederation, the various States had their own rules for qualifying for citizenship:

By the laws of several States, certain … aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent…with…citizenship…What would have been the consequence, if such persons…had acquired the character of citizens under the laws of another State, and then asserted their rights as such … within the State proscribing them? … [C]onsequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly … made provision against them …by authorizing the general [federal] government to establish a uniform rule of naturalization throughout the United States.

So!  All this clause does is grant to the federal government exclusive authority to set the criteria for citizenship.  The only way Arizona could violate Art. I, Sec. 8, clause 4 would be if Arizona made a law which purported to set different criteria for citizenship in Arizona.

5. Now let us look at the Arizona Law. But you must prepare yourself for the shocking facts of this Law!  When Arizona officials have made lawful contact with illegal aliens, they are going to turn them over to the custody of the federal government! Yes! Arizona officials actually propose to turn these illegal aliens over to the United States Immigration and Customs Enforcement  (ICE) or to the United States Customs and Border Protection.

Other provisions of the Arizona Law address crimes committed by illegal aliens and others within the borders of the State (criminal trespass, human smuggling, impeding traffic while picking up day laborers, harboring & concealing illegal aliens, and knowingly employing illegal aliens). After the illegal aliens have served their sentences, they will be turned over to ICE or US Customs and Border Protection! Shocking, isn’t it?

So, where’s the conflict with the US Constitution? Identify Article, Section, & Clause, if you please!  Is anyone so silly as to assert that it violates the U.S. Constitution for officials of the Sovereign State of Arizona to turn illegal aliens over to the federal authorities?  Is anyone so silly as to assert that the Sovereign State of Arizona has no criminal jurisdiction over illegal aliens who commit crimes within the Borders of that Sovereign State?  When illegal aliens murder, rape, and rob citizens of the Sovereign State of Arizona, does their status as illegal aliens immunize them from responsibility for their crimes?  Is it the hysterical predictions that “racial profiling” might occur?  Just what is “racial profiling”, and where is that prohibited in the Constitution?  And if the Southern Border is being invaded by Mexicans and Muslims from the Middle East, should Arizona officials focus on blue-eyed blonde-haired people who are speaking Norwegian just to show that they don’t notice when someone looks Mexican or Muslim and speaks Spanish or Arabic?  Are We a People who have lost our minds?  Do we continue to permit political correctness to blind us to Reality?  Do we continue to pretend that the naked Emperor is wearing clothes?

Alexander Hamilton shows in Federalist No. 32 (3rd para) the proper questions to ask: Is there anything in the US Constitution which makes the powers asserted by the Sovereign State of Arizona EXCLUSIVE in the federal government?  Is there anything in the US Constitution which prohibits the States from exercising the powers which Arizona exercises in her Law?  No and No!  In fact, Arizona has exclusive jurisdiction over illegal aliens who commit violations of Arizona’s Criminal Laws.  And the federal government simply has no authority whatsoever to interfere. And to the extent the federal government does interfere, its actions would not be pursuant to the Constitution, but would be mere usurpations of power and would deserve to be treated as such.

There is nothing in the US Constitution which prohibits Arizona from exercising the powers in her Law. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from Art. I, Sec. 10, last clause:

No State shall …keep Troops…in time of Peace…or engage in War, unless actually invaded…

So!  Not only may the Sovereign State of Arizona turn illegal aliens over to the custody of the federal authorities, and not only may that State prosecute illegal aliens for their crimes committed within the Borders of that State, Arizona may also keep troops and engage in War to defend herself from the Invasions. It has been shown before that Art. IV, Sec. 4 requires the federal government to protect each of the States against Invasion. But the federal government refuses to do its duty!  The Sovereign States have both a retained and an express authority to do it themselves. They must do it, or be overrun. PH

June 4, 2010
Add to DeliciousAdd to DiggAdd to FaceBookAdd to Google BookmarkAdd to MySpaceAdd to NewsvineAdd to RedditAdd to StumbleUponAdd to TechnoratiAdd to Twitter

June 4, 2010 - Posted by | Arizona Illegal Alien Law, Arizona Lawsuit, Exclusive and Concurrent Jurisdiction, Supremacy clause

29 Comments »

  1. […] Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & C… Guelzo mentions “preemption” [it does sounds "grand, doesn't it?]; but in this paper I […]

    Pingback by Nullification: Smacking Down Those Who Smackdown The Constitution - Sons of Liberty Media | August 21, 2014 | Reply

  2. The constitution speaks of “naturalization” not immigration. State rights to control foreign immigration into its territory is constitutional.
    The federal government is limited to Naturalization only! See Art. I section 8 clause 4; Art. I section 8 clauses 17 & 18; modern Constitutional Law (Antieau), sections10:1 thru 10:118.

    Comment by RICK | March 29, 2013 | Reply

    • Rick, Art. I, Sec. 8, cl. 4 delegates to Congress the power to establish uniform rules of “Naturalization”.

      Art. I, Sec. 9, cl. 1, delegates to Congress the power – to take effect in 1808 – to control “Migration” – to control who is permitted to come here. That is the clause which gives Congress power to prohibit all immigration by muslims, mexican welfare parasites, etc.

      And until Wrong turn teddy’s immigration act of 1965, Congress had long restricted immigration to people ….. primarily like us.

      Comment by Publius Huldah | March 29, 2013 | Reply

  3. […] This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | American Clarion | February 28, 2013 | Reply

  4. […] (1834). The quote is near the end. Use “find” function. 8. This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by NULLIFICATION DENIERS: WHAT JAMES MADISON REALLY SAID PART 1 & 2 | Jericho777's Blog | February 6, 2013 | Reply

  5. […] explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Unified Patriots | January 31, 2013 | Reply

  6. […] This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Publius Huldah: "James Madison Rebukes Nullification Deniers" | USA NEWS FIRST | January 31, 2013 | Reply

  7. […] This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by James Madison Rebukes Nullification Deniers. « Publius-Huldah's Blog | January 31, 2013 | Reply

  8. […] This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | January 31, 2013 | Reply

  9. […] explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Grumpy Opinions | January 31, 2013 | Reply

  10. […] This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said | Illinois Conservative Beacon | January 28, 2013 | Reply

  11. […] explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent […]

    Pingback by Nullification Deniers! This Is What James Madison Really Said « Veteran Patriot | January 28, 2013 | Reply

  12. Publius,
    I have a couple of questions that have been burning my mind and I haven’t heard them asked or answered. It deals with the current Court case involving Arizona being sued by the feds for enforcing immigration laws. Well my questions are: If Arizona is not allowed to enforce federal immigration laws, then why should Arizona enforce Obama Care or any federal laws?

    Another one is why would the states create a union and give up immigration powers (to the union) if the union (fed) can not, or will not enforce its own immigration laws? Does the state(s) have the duty to their people of their state over their obligation to the federal government?
    Am I off-base or missing something, that to me seems elementary?

    Respectfully,
    Sonny Farmer

    P.S. I recently discovered a word “republicanism”. I feel most people who call themselves “republicans” do not know this word. Another word I think that is missing (forgotten) out of the republican vocabulary is the word, “federalism”. I feel if conservatives would champion these two ideas we can get somewhere. Food for thought I guess.

    Comment by Sonny Farmer (@SonnyFarmer) | April 28, 2012 | Reply

    • Sonny!

      1. Your first question is brilliant! If AZ is not allowed to enforce federal immigration laws, then why SHOULD they enforce obamacare or any other federal laws? You are thinking like a manly man. That is an argument I would be proud to make standing before the supreme Court at oral arguments on this case, in addition to the arguments I make in the above paper.

      2. Remember, the Federation of Sovereign States created by Our Constitution is a “union” only for the purposes enumerated at Art. I, Sec. 8, cl. 3-16: National defense and international relations & commerce; and domestically, the creation of an uniform commercial system: Weights & measures, patents & copyrights, a money system based on gold & silver, bankruptcy laws, mail delivery, and control of the borders – an inherent attribute of nations. The duty to protect the States from invasion is expressly placed on the federal government at Art. IV, Sec. 4.

      At Art. I, Sec. 8, clause 4, Congress is granted power to establish “an uniform Rule of Naturalization”. In Federalist No. 42 (4th para from the end), James Madison explains why the criteria for citizenship – naturalization – needs to be uniform throughout the States. An alien could qualify for citizenship in one State, but not another. So, that’s why Congress was given constitutional authority to establish an uniform rule for how aliens could qualify for citizenship in any State.

      The federal government doesn’t want the federal immigration laws enforced b/c they want hoards of illiterate Mexicans coming here. They seem to want Muslims to flood our Country. The Democrats want this. The Republicans want this. I do not understand why. I think all democrats and Establishment Republicans are demented.

      As I show in the above Paper, if the federal government refuses to perform its DUTY to protect the States from invasion, then the States must do it. And BTW, note that the States retained the power to engage in War when they are actually invaded (Art. I, Sec. 10, last clause).

      The States have no duty whatsoever to the federal government. As I prove in my Model Nullification Resolutions, the federal government is merely the “creature” of the Constitution, and as such has no “rights”. It has only delegated powers. The States’ only duty is to THE U.S. CONSTITUTION and to the Constitution of their own States.

      No! You are not off-base. You have that rare ability to see that the emperor isn’t wearing any clothes.

      Comment by Publius/Huldah | April 29, 2012 | Reply

  13. […] Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & C…  Guelzo mentions “preemption” [it does sounds "grand, doesn't it?]; but in this paper I  […]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Oath Keepers of Orange County, CA | April 18, 2011 | Reply

  14. […] The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & C… Guelzo mentions “preemption” [it does sounds “grand, doesn’t it?]; but in this paper I […]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Veteran Patriot | April 18, 2011 | Reply

  15. […] Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & C…  Guelzo mentions “preemption” [it does sounds "grand, doesn't it?]; but in this paper I  […]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Bonfire's Blog | April 18, 2011 | Reply

  16. Not so fast there, try reading a few court opinions and some laws before espousing wrong information . . . If you look at Case v. Bowles, 327 U.S. 92 (1946) The Supreme Court addressed your issue:
    “Another procedural point urged by the State is that since this is in effect a controversy between the United States and the State of Washington, the United States Supreme Court has exclusive jurisdiction under Article 3, Section 2, Clause 2, of the United States Constitution and the District Court lacked power to try the case. But it is well settled that despite Article 3, Congress can give the district courts jurisdiction to try controversies between a state and the United States.FN3 ”
    Congress has done just that in 28 USCA 1251, 1331, and 1345. 28 USCA 1251 addresses why the case is not the exclusive jurisdiction of the Supreme Court:
    “(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
    (b) The Supreme Court shall have original but not exclusive jurisdiction of:
    (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens.”
    And 28 USCA 1331, 1345, grants the district courts original jurisdiction.
    Thus, why the District Court had jurisdiction to hear the case.

    Comment by Lawyer | August 4, 2010 | Reply

    • 1. Always be courteous.
      2. Questions: Are Congress and SCOTUS subject to The Constitution? Or, is The Constitution subject to the wills of Congress and SCOTUS?

      Comment by Publius/Huldah | August 4, 2010 | Reply

  17. “Just what is “racial profiling”, and where is that prohibited in the Constitution?”

    IANAL, but I’m going with the Equal Protection clause of the 14th Amendment. Am I missing something?

    Comment by Webster | August 4, 2010 | Reply

  18. Good article. Send in the AZ national guard troops, Governor!

    Comment by Joyce | June 28, 2010 | Reply

  19. An excellent exposition, as usual, Publius!
    Thanks for the continuing good work.
    I will forward this to a speaker at the Rally at the State Capitol in Austin in support of the Arizona efforts.

    Comment by Curtis Miller | June 10, 2010 | Reply

    • Thanks, Curtis! Please do all you can to explain to those in your spheres of influence, the true meaning of the so-called “supremacy clause”, exclusive jurisdiction in the federal government, concurrent jurisdiction among the federal government and the States, and jurisdiction RETAINED by the States.

      And use simple language!!! I am still searching for a more simple & clear way to explain it.

      And where ever you go, start talking to “the room” about Our Constitution. I have started doing this, and many in the room are interested!

      Comment by Publius/Huldah | June 12, 2010 | Reply

  20. Very interesting. The “uniform Rule on Naturalization” says nothing about protecting against invasion; it only establishes, as you say, the criteria for citizenship. Thus, there is no consitutional repugnancy in these two areas. Federal law that attempts to limit the policing of the border only to the federal government would be a usurpation. Merely saying that federal law has explicitly or implicitly preempted state power to act in the same area begs the question, What is the constitutional power of the federal government to act?

    Nothing regarding the power to resist invasion having been taken from the states by the Constitution, they may do so with or without resort to troops and war.

    I’ll reserve final judgment until I read more about this but I must say your analysis seems solid at first blush.

    Comment by Col. Bunny | June 6, 2010 | Reply

    • Thank you, Col. Bunny! Everything you say is completely correct. In the previous paper I addressed the defense of our borders from invasions. I’m glad you stopped by. Do stay in touch. From time to time, I have military questions.

      Comment by Publius/Huldah | June 6, 2010 | Reply

      • I’m glad I ran across your blog and will indeed check back. My military experience is from the time of rice paddies and Phantoms but I’ll be happy to assist when I can. No one should be without my opinion, I always say.

        Comment by Col. Bunny | June 7, 2010 | Reply

  21. This is a very concise and understandable definition of the various forms of Jurisdiction. Thank you again, Publius!

    Comment by Cristi Ritchey | June 4, 2010 | Reply

  22. Excellent Article. I concur with it completely.

    Comment by Jerry McDaniel | June 4, 2010 | Reply

    • Thank you, Jerry!

      Comment by Publius/Huldah | June 4, 2010 | Reply


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 879 other followers

%d bloggers like this: