Federalism: The New F-Word?

Civil rights advocate, Sean Erenstoft claims that a tectonic shift in American immigration policy is emerging with Trump making good on his promise to enforce federal immigration laws to the consternation of state governments charged with helping him.

The debate today concerns migration policy and the stressors placed on state governments to enforce federal law. Whereas the United States practices the concept of federalism whereby a central unifying body governs smaller state governments which zealously claim their own autonomy and borders, the current debate reverberates an old problem. Who’s laws prevail?

Ignore for the moment the foundational concerns about preemption where federal law preempts state laws when the feds intend to set forth a national policy and that policy contradicts state law. The issue today is not about preemption but rather the cost of taking responsibility for our porous borders which have allowed migration to flow chiefly from Mexico into this country. Traditionally, the obligation to protect our borders lay with the federal government given that national immigration laws have been the province of our federal government under the preemption philosophy which has guided our country since its founding.

Trump’s latest missives suggesting that federal monies may be restricted for “sanctuary” cities (and presumably states) where immigration enforcement lags behind the Trump administration’s muscular stance regarding immigrants. This article is written because there is a philosophical quandary at play that cannot be settled by the simple branding of the competing interests as “liberal” or “conservative,” or “democrat” versus “republican.” We are contemplating the rights of states versus the federal government and the human rights enshrined in our Constitution and Bill of Rights — particularly the 14th Amendment.

Whereas the federal government has been lackadaisical in enforcing our borders through the ages, states are now being. . . threatened. . . to clean up after a century of systematic devolution of nation-wide immigration policy. The present quandary consists of the federal government threatening state authorities to remedy the national government’s inability to control our borders.

Enforcement of the United States’ immigration policies was once firmly the ambit of the federal government — state and local law enforcement was only tasked with minimal support. Since 1996, the feds have deferred to state governments and given them latitude on how aggressive they would arrest, screen and deport unauthorized immigrants.

Since 9/11, however, the states have been at odds with the federal government but not in the way you might think. Particularly southern states took it upon themselves to pass laws (i.e., “show me your papers” laws) that arguably impede on Fourth and Fifth Amendment rights in violation of the due process clause of the Fourteenth Amendment. While these laws do resonate and reflect political considerations and nationalistic idealism, the balance has always been meted out by challenges decided by our Supreme Court. Caveats against racial profiling and prolonged detentions were at the forefront of those civil rights challenges.

Today, the tables are reversed. We are now about to experience what happens when our state and local governments show considered restraint about who, how and when to deport immigrants. The arguments are varied but seem to distill into humanitarian considerations about local policing and the dismantling of the fragile trust local governments have formed with immigrant communities in facing the challenges of governing the patchwork of ethnicity that is America.

Federalism and preemption are at the fore of the debate today. Whereas President Trump astutely cites the existence of foreign influence and domestic terrorism as the basis for his immigration policies, he seems to have been properly coached about his strongest constitutional arguments for his otherwise divisive policies. Indeed, it is within his oath-of-office to protect the nation from threats — foreign and domestic. With citations to the health and safety of the country, Trump is on historically strong footing for what is likely to become an epic battle over civil rights and immigration policy all cloaked in “protect the nation” overtures and platitudes. [Hard to debate that postulation and thesis. . .]

For me, the debate becomes whether it is legal for the Trump administration to effect the withholding of federal funds from state governments to effect his immigration policies. Stay tuned for that debate.


*Sean Erenstoft is a civil rights advocate and political observer based out of Los Angeles, California.


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