Thursday, November 15, 2007

Federalism arguments favor border wall opponents

Yesterday I argued that the states rights baby shouldn't be tossed out with the bathwater of segregationism, and here's another example where the revitalized concept would come in handy. Reports Forrest Wilder at the Texas Observer blog:
With a stroke of his pen last month the Homeland Security chief suspended nineteen laws in Arizona that stood in the way of a two-mile section of border fence slated for the San Pedro Riparian National Conservation Area.

He’s threatening to do South Texas the same way, unless environmentalists win a recently filed lawsuit.

[Michael] Chertoff is using a tool granted to him by Congress in 2005 as part of the Real ID Act. In Section 102 of that act, Congress offered Homeland Security the power to waive laws conflicting with border militarization security. Congress also stripped the courts of judicial review except for Constitutional claims.

What an outrageous abuse! Here's a situation that, to me, cries out for strident claims of state sovereignty. I've said before a wall on the Texas-Mexico border amounts to the most imbecilic public policy I've ever heard seriously proposed. If it happens, we will be the first nation state in history of the planet to build a wall along a major river, and leave the river on the other side!

Overturning state and local laws with a stroke of a pen in Washington is an affront to federalism and the concept of local control, snubbing people on the front lines who have firsthand stakes in the border and border security. By all rights, opponents of a border wall should be waving banners with the Tenth Amendment to the Constitution stenciled on them. But since those arguments have been all but banished from polite society - after all, Bob Herbert might call you a racist - opponents find themselves falling back on weaker arguments. E.g., the Observer reports that:
residents on both sides of the border as well as environmentalists and birders are enraged over the fence.

The latest map released by the government shows segments of the wall slicing through critical habitat in Texas. The Sabal Palm Audubon Center in Brownsville will be completely walled off, leaving this rare, species-rich palm grove in a sort-of no-man’s-land. Many Texans probably do not know that the Lower Valley is the most biologically diverse region in the nation. Yet it has a global reputation. I’ve met people from as far away as South Africa who have never set foot in Texas but know about the Valley because of its fame as a birding and wildlife paradise.

Chertoff’s response to all this? “I have to say to myself, ‘Yes, I don’t want to disturb the habitat of a lizard, but am I prepared to pay human lives to do that?’,” he told the AP.

Chertoff's response is as clever as it is disingenuous (arguably building a wall will cost more lives by pushing migrants further out into the boondocks): If the debate is defense against Al Qaeda against bird habitat, I think the wall builders probably win. But if the debate is about federalist ideals laid out in nation's founding document, I think arguments against the wall gain more traction.

It's not that birds and lizards don't matter, it's that the environmental issues appeal to a fairly narrow and more liberal segment of the public, while even those without a personal or ideological stake in environmentalism can find reasons to dislike a fence that restricts Texans' access to a major river and was imposed by Washington against the wishes of the locals.

There are many good arguments for opposing a border wall, there's really no reason to limit yourself.


Anonymous said...

Grits, Grits, Grits.

Get a Grip.

I agree with everything you said about the imbicelic border wall, about the stupidity of Federal bureaucrats, about the uselessness of the Wall. If you had said of Chertoff that he is a dumb-ass, retro-Monarchists with shit for brains, I would have agreed with you on that.

But, doggone it, control of an international border is a federal issue, the province of federal law, and not the business of a state or local government. And please, note the word "national" in "San Pedro Riparian National Conservation Area." That real estate belongs to the federal government, and the patrons running that office just now are pretty much total fucking moroons.

Jesus, I wish you had left Bob Herbert out of this.

Maybe someone will just blow the damn wall down.

Or, we can throw the stupid fuckers out come next November.

Gritsforbreakfast said...

I'm fully gripped, Doran. I'm about to run but here's a quick response:

"control of an international border is a federal issue, the province of federal law, and not the business of a state or local government"

Before the US civil war, states controlled entry and egress, and SCOTUS considered immigration a state matter. Immigration control was part of the post-Civil War federal seizure of state power.

"note the word "national" in "San Pedro Riparian National Conservation Area." "

In Brownsville it's the "The Sabal Palm Audubon Center" in Brownsville, is it federally owned? Plus the landowners themselves in Valley don't want it. Most riverfront property on the Rio Grande is privately owned.

Like I said, there's no reason to limit yourself! best,

Anonymous said...

I will appreciate it if you will document, or in some reasonable fashion, support your claim that before the War of Southern Secession the States controlled the federal international borders and the SCOTUS recognized control of immigration to be the right of the states.

Thank you.

Gritsforbreakfast said...

Doran, here's an argument on the topic from The Federalist Blog. One of the reasons for the American Revolution was that King George, according to the Declaration of Independence, was "obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither." Individual States desired to regulate immigration themselves.

This source says "At first it was unclear whether the federal government was given the authority by the Constitution to regulate immigration." It only became more "clear" the feds could do so after the southern revolt.

Before the Civil War, only states, not the feds, restricted immigration, e.g. "Illinois state law prohibited black immigration to the state." Many pre-war conflicts occurred over states' restrictions on immigration, e.g., some states disallowed free blacks, some disallowed slaves, and the Kansas-Nebraska Act was largely about granting state "sovereignty" to make those decisions.

Let me know if that doesn't do it for you. To me it's pretty clear that immigration is a usurped states right, not an originally federal one. best,

Anonymous said...


At one point, a black man had no rights a white man was bound to respect.

Some things change.

Gritsforbreakfast said...

And what does that have to do with immigration, a border wall, etc.? Are you saying border wall proponents are somehow on the side of civil rights?

What are you talking about?

Anonymous said...

To put up a wall to seal one nation from another seems to me to be the manifestations of a seige mentality, martial law, and short-term thinking.

History has many examples: The Great Wall of China, Hadrian's Wall, the Maginot Line, the cliffs above the Normandy Beaches, the Korean DMZ, the Berlin Wall, the Iraq/Kuwait Border.

In the end--no matter how high the berms, or how deep the anti-tank trenches, or how many miles of concertina wire were used, or how many watch towers and guard posts--as the times have changed, these barriers have either lost or will lose their function.

Many have deteriorated over time. Many have been dismantled. Some are now even considered to be museum pieces.

Maybe a half-a-century or so from now there will be guided tours along the fortifications of the one-time U.S./Mexico Border.

W W Woodward said...

Grits, you said, "...we will be the first nation state in history of the planet to build a wall along a major river, and leave the river on the other side!"

How many thousands of Texas acres does that so-called Homeland Security idiot want to cede to Mexico?

Constitutional question? - There's your constitutional question. The federal government has no constitutional authority to slice and dice the borders of the State of Texas.

Real ID Act be damn'd. A bureaucrat in the federal government doesn't have the constitutional authority to waive the laws of the state of Texas regardless of what the federal legislature has been panicked into passing.

Anonymous said...

US Constitution-10th Amendment

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.


I've not located any text in the Constitution that delegated power to the Federal Government to regulate immigration. Therefore, the information cited by Grits' seems conclusive, IMHO.

I'm guessing that the EP Clause of the 14th Amendment is what is relied upon to allow the Feds the authority to regulate immigration.hjx

W W Woodward said...


US Constitution - Article I - Section 9 - Limits on Congress:

"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,..."

It appears that up until 1808 the "states now existing" (thirteen original only?), rather than the federal government, controlled immigration.

Grits & Anon 10:59,

Would it follow that after the year 1808, The limitation - would expire and the federal government would then be allowed to prohibit or otherwise limit immigration?

It would also seem to follow that the feds would have to find a constitutionally acceptable method, or amend the constitution, before doing so. To date, it appears they have done neither.

Gritsforbreakfast said...

I'm pretty sure that's a specific reference to slaves, WWW, not to general migration, but I'm not an immigration or constitutional law expert.

Speaking from an historical as opposed to a constitutional perspective, states controlled immigration long after that. They issued their own passports pre-war and had their own state immigration offices, etc., even after the civil war until the authority was federalized during Reconstruction. best,