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Immigration: The Left Again Embraces Nullification of Federal Laws

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11/28/2016

With Donald Trump set to be sworn in as President in January, many leftists have suddenly discovered a new love for political decentralization. 

The most notable example, of course, is the effort by some Californians and Oregonians to secede from the United States and set up independent republics. 

While secession is perhaps the most visible and "extreme" manifestation of political decentralization, nullification serves a similar purpose. 

[RELATED: "When Nullification Works, and When it Doesn't"]

And, not surprisingly, the left has embraced nullification in recent weeks when faced with Trump's proposed policies on immigration. 

State and Locals Refuse to Assist Federal Agents 

For example, the Los Angeles Police department has stated it will not assist the Trump administration in rounding up immigrants for deportation. Earlier this week, LAPD Chief Charlie Beck announced

We are not going to engage in law enforcement activities solely based on somebody’s immigration status. We are not going to work in conjunction with Homeland Security on deportation efforts. That is not our job, nor will I make it our job.

Similarly, officials in two of Colorado's largest cities — Denver and Aurora — have said "they will not enforce federal immigration laws." 

John Hickenlooper, the governor of Colorado, has "hinted he would block any federal agents from coming in." 

Numerous other mayors and local officials have also pledged to not cooperate with the Trump administration. 

In response, Donald Trump has vowed to cut federal funding to uncooperative jurisdictions. 

Both Sides Are Right

The fight for local control over immigration policy is a step in the right direction. Immigration policy should be enforced at the local level without federal control. As Judge Andrew Napolitano has noted, the US constitution does not grant the Federal government power over immigration policy: 

[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.

Moreover, during the 19th century, it was common for state governments to determine voting rights and other elements of the naturalization process. 

Current efforts to assert state and local control over immigration policy are nothing new in light of historical precedents, and these modern attempts at nullifying federal laws are reminiscent of laudable state and local refusals to enforce federal fugitive slave acts. 

On the other hand, while the locals should be entitled to enforce laws independent of federal central planners, the Trump administration should also cut federal funding. After all, taxpayers should not be forced to pay for government programs in distant parts of the nation where political values are different. 

Only when state and local governments begin to refuse to be bribed by federal spending programs will there be any hope of reassertion of state and local independence from Washington, DC. 

Welfare Spending Is the Key 

The refusal by local governments in enforcing the proposed deportation efforts also illustrate the overall lack of feasibility in Trump's plan. As if often the case with federal policy, the federal government cannot hope to enforce federal laws without help from local law enforcement agencies. 

This is why, as early as August 2015, Ron Paul was mocking the Trump plan, and called the plan to deport millions of people "impossible" to carry out. 

Paul also opposed the idea of a wall, declaring that "I could never take a position that we need more barbed wire to solve this problem."

The dim prospects for the plan become even more clear as members of Congress have wondered aloud where they're going to find the money necessary to enact Trump's deportation plan. Colorado Congressman Ken Buck, who was an anti-immigration hard-liner when he was a district attorney in Colorado, is already skeptical that the plan will ever take shape given its "50 or 60 billion" dollar price tag. 

Thus, this leads us to the only practical and laissez-faire method of dealing with the presumed costs of illegal immigration: cutting government spending. 

If federal policymakers want to do something that requires no assistance from local bureaucrats or politicians, the course of action is simple: cut federal spending. 

While federal spending of all types should, of course, be cut, the Trump administration, assuming it wishes to lower immigrant totals, should simply craft policy to deny federal spending on non-citizens or recently-naturalized citizens. 

If the federal courts oppose these restrictions on welfare spending, the Congress should engage in jurisdiction-stripping to hobble the ability of the Supreme Court to rule on the matter. In any case, without the acquiescence of the executive branch, the courts are powerless to force the federal government to spend anything. 

If Trump were truly serious about impacting immigration, he would embark on a federal version of California's Proposition 187 which sought to deny government benefits to illegal aliens. This policy would have the benefit of actually reducing the size and scope of the federal government, unlike most of Trump's proposed immigration-related plans. 

Unlike taxpayer funded walls and police raids on private homes to find immigrants, a welfare-spending approach would mean less government spending while requiring no buy-in from local officials. 

Moreover, restrictions on federal spending would put the onus on state and local officials who are committed to favoring immigrant-friendly interest groups. State and local government should be free to create and enforce immigration laws as they see fit. However, they should also have to convince their own taxpayers to pay for their plans to extend social benefits and not rely on workers from somewhere else to finance the politicians' "generous" policies. 

Encouraging Nullification

Unfortunately, many Trump backers are likely to attack state and local governments who nullify federal immigration laws while making kneejerk claims that federal policy is "the law of the land." In doing so, they are simply repeating the claims of leftists who attack anti-gun-control advocates who seek to nullify federal gun laws or Obamacare.  

In fact, it is altogether healthy that the left continues to find its appreciation of nullification — as it has done with federal marijuana laws in recent years. It should be further encouraged to do so. At the same time, rightwingers should feel free to point out leftwing hypocrisy the next time the left demands that rightwingers enforce federal laws. If the governor of Colorado wants to "block any federal agents" from enforcing Trump's immigration policy, he should also recognize he has abandoned the right to demand that other governors enforce every federal law on the grounds that federal laws trump state laws. 

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
Image source: Photo of Gov. John Hickenlooper via Wikimedia

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