COLUMBIA S.C., Dec. 12, 2014 – Two South Carolina bills up for consideration in 2015 take a strike against federal immigration policies set by President Obama via executive order.
House Bill 3086 (HB3086) and House Bill 3120 (HB3120) were both pre-filed on Dec. 11 and will be introduced formally during the 2015 legislative session. HB3086 is sponsored by Rep. Chip Limehouse (R-Charleston) and HB3120 is sponsored by Rep. Mike Pitts (R-Laurens). The bills attempt to mitigate aspects of federal immigration policy believed to be harmful for South Carolinians.
HB3086 states that “an officer or employee of an agency of this State or of a political subdivision of this State may not take or refrain from any action, or expend or authorize the expenditure of public funds in this State as a result of an official contact with an individual who is a non-citizen of the United States illegally present in the United States, and because of that status, subject to deportation but for executive action taken by the President of the United States.”
HB3120, the South Carolina Immigration Compliance Act of 2015, states that “a person may not receive any retirement, welfare, health, disability, public or assisted housing, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the State or a political subdivision of the State or by appropriated funds of the State or a political subdivision of the State unless the person verifies that he or she is lawfully present in this State.”
By refusing to provide financial and other benefits, supporters say, the incentive for immigrants to move to South Carolina will be far lower.
What is more important than the debate over the effects of allowing or preventing immigration is the power being assumed by the President by executive order. Even those in favor of the president’s actions in principle should be opposed to his approach. By setting the precedent that the executive branch has such unilateral power, a future president could easily do the opposite and far more.
That is why HB3086 and HB3120 are a step in the right direction. By chipping away at federal authority on the issue of immigration, it opens the door for more local and state level control on the issue. This way, we are not subject to the dictates of an imperial executive. We can have more autonomy in deciding the fate of our communities as the Founding Fathers wished, for better or for worse.
But is the approach constitutional?
The proposed amendment language in the two bills mirrors the well-established legal doctrine of anti-commandeering. The Supreme Court has consistently held that the federal government cannot force states to help implement or enforce a federal act or program. This doctrine rests primarily on four SCOTUS cases – Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012).
The Printz case serves as the modern cornerstone. In it, Justice Scalia held:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
The bill language is also consistent with the advice of James Madison, who wrote in Federalist #46:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. [emphasis added]
In short, the Father of the Constitution advised a strategy of refusing to participate in federal acts as the way to stop them. In his time, when the federal government wasn’t involved in much at all, it was considered an effective method. This holds far more truth today, when, as the National Governors’ Association noted in 2013, the states and feds are partners on “most federal programs.”
THEY NEED HELP
While the federal politicians and bureaucrats would like you to believe that the federal government is all-powerful and will do what it wants, when it wants, this couldn’t be further from the truth.
The Secret Service wasn’t able to carry out a warrantless raid in Tennessee without help from local police. In fact, they were so desperate for help from the state, they were “frantic.”
A vast majority of raids carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) only occur with significant assistance from state or local resources. The Drug Enforcement Agency (DEA) barely has the resources to shut down just a fraction of marijuana businesses in just one city out of the 20+ states rejecting the unconstitutional federal prohibition on that plant.
When the NSA builds a new facility to house all your private communications, it relies on things like water or electricity provided by state or local agencies, or it won’t have the resources to stay open.
The Affordable Care Act is already being crippled by states that have refused to implement parts of the federal program, and further state resistance is likely to bring the entire Act down.
The National Park Service can’t shut down a park without help from states, and the FBI’s facial recognition program won’t go anywhere without images supplied by state Departments of Motor Vehicles.
“A partnership doesn’t function too well when half of it refuses to participate,” said Michael Boldin of the Tenth Amendment Center. “The feds simply don’t have the manpower to enforce their mandates without our help.”
For South Carolina: Call your state house representatives and politely urge them to co-sponsor and support HB3086 and HB3120. Then, call your state senator and politely urge them to introduce similar legislation in their chamber. You can find their contact information HERE.
For other states: Call your state legislators and politely urge them to introduce a bill similar to HB3086 or HB3120 in South Carolina. You can find their contact information HERE.