Democrats and Republicans have been arguing over the issue of election integrity ever since Donald Trump lost to Joe Biden in the presidential election of 2020. A key feature of this debate is the question of whether illegal immigrants are voting in American elections. Many Republicans maintain that significant numbers of them are indeed voting in our elections. Their real concern, of course — Republicans being Republicans — is that illegal immigrants supposedly vote overwhelmingly for Democratic candidates.
Bills and orders
The first bill introduced in the House (H.R.1) and the Senate (S.1) in the 117th Congress of 2021 — before Biden was even inaugurated — was the For the People Act. The bill would have:
- expanded voter registration and voting access;
- limited removing voters from voter rolls;
- required states to establish independent redistricting commissions to carry out congressional redistricting;
- expanded the prohibition on campaign spending by foreign nationals;
- required additional disclosure of campaign-related fundraising and spending;
- required additional disclaimers regarding certain political advertising;
- established an alternative campaign funding system for certain federal offices;
- required a code of conduct for Supreme Court Justices;
- required presidential candidates to disclose 10 years of tax returns.
The For the People Act passed the Democratic-controlled House by a vote of 220–210. Only one Democrat joined all of the Republicans in voting against it. The bill was never voted on in the Senate.
About two months after he was sworn in as president the second time, Trump issued an executive order (14248) titled Preserving and Protecting the Integrity of American Elections. Federal courts ruled that parts of Trump’s executive order were unconstitutional and blocked their enforcement, including the mandate for documentary proof of U.S. citizenship to register using the federal voter registration form and the mandate that agencies distributing registration forms must verify citizenship first.
The Safeguard American Voter Eligibility Act (SAVE Act) was passed by the Republican-controlled House by a vote of 220–208 soon after President Trump issued his executive order. The bill, which would amend the National Voter Registration Act of 1993:
- prohibits states from accepting and processing an application to register to vote in a federal election unless the applicant presents documentary proof of U.S. citizenship;
- specifies what documents are considered acceptable proof of U.S. citizenship;
- prohibits states from registering an individual to vote in a federal election unless, at the time the individual applies to register to vote, the individual provides documentary proof of U.S. citizenship;
- requires states to remove noncitizens from their official lists of eligible voters.
The bill has not been voted on in the Senate. In February of this year, the House, by an even more partisan vote of 218–213, passed a similar bill called The Safeguard American Voter Eligibility Act (SAVE America Act). But as the House Rules Committee’s ranking member Jim McGovern (D-Mass.) pointed out ahead of the vote, it is “already illegal for noncitizens to vote in federal elections.”
Election nationalization
Just before the start of the Winter Olympics, President Trump had a podcast interview with former FBI deputy director Dan Bongino. During the interview, the president lamented that Republicans weren’t tougher on noncitizens voting:
The Republicans should say, “We want to take over — we should take over the voting” in at least many — 15 — places. The Republicans ought to nationalize the voting.
We have states that are so crooked, and they’re counting votes.
If you think about it, a state is an agent for the federal government in elections. I don’t know why the federal government doesn’t do them anyway.
There is one main problem with President Trump’s call to nationalize elections: the Constitution, which decentralizes the election process with a minor role for Congress. Article I, Section 4, of the Constitution states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” There is no provision for the president to have anything to do with elections through executive action.
Not all Republicans agreed with the president. Senate Majority Leader John Thune (R-S.D.) went on record that he was “not in favor of federalizing elections.” Said Thune: “I’m a big believer in decentralized and distributed power. And I think it’s harder to hack 50 election systems than it is to hack one. In my view, at least, that’s always a system that has worked pretty well.” Rep. Don Bacon (R-Neb.) agreed: “I opposed nationalizing elections when Speaker Pelosi wanted major changes to elections in all 50 states. I’ll oppose this now as well.” Even the Heritage Foundation, the conservative think tank that doesn’t hesitate to abandon long-held conservative opinions to defend the actions of President Trump, has said in its policy priority titled “Ensure Election Integrity” that it “will always oppose a federal takeover of our elections by Washington elites.”
Another problem with President Trump’s call to nationalize elections is that it is based on something that is largely imaginary. A recent article in the New York Times (“Trump’s Claims About Noncitizens Voting Are False. We Can Prove It”) by Stephen Richer that was published as a Cato Institute commentary concluded that “a number of states have undertaken investigations into noncitizen voting, cross-checking voter rolls with citizenship status, and found it virtually nonexistent.” He also pointed out:
People largely aren’t willing to risk their status in the United States — the land of economic opportunity — for the ability to cast one more vote out of hundreds of thousands or millions in a state and hundreds of millions in the country.
The investigations also suggest that many politicians and public interest groups, all of which have access to these reports, may not actually care that much about election security. The constant talk of noncitizen voting is more likely about scoring political points and bolstering fund-raising.
Now, none of this means that there weren’t irregularities in the 2020 presidential election, but illegal immigrants voting was a negligible part of them.
Nationalization and federalism
The nationalization of elections is a terrible idea. So why do Republicans who rightly oppose such an idea have no problem with the federal government nationalizing other things that are also clearly in violation of the Constitution?
The United States was established with a federal system of government in which the states, through the Constitution, granted a limited number of powers to the central government — not the other way around. The states had been in existence as independent colonies for many decades before the adoption of the Constitution. Nationalization is both the opposite and the enemy of federalism, which is simply the division of power between the national and state governments. Articles I through III of the Constitution delegate, but don’t surrender, certain powers to the three branches of the central government. There are about 30 enumerated congressional powers listed in the Constitution. The Ninth and Tenth Amendments make it clear that all rights and powers not delegated to the federal government are retained by the people and the states. Every service is to be performed, every criminal law is to be made, and every problem is to be solved, at the state level. To support a federal answer to any question is to oppose the Constitution and the federal system of government established by the Founders.
The best explanation of American federalism was that given by James Madison in Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
Federalism is the answer even when it comes to elections. According to Ballotpedia, “In 2026, lawmakers in 17 states introduced 30 bills related to proof of citizenship for voting” and “lawmakers in 25 states have introduced 115 bills related to voter ID.”
Some things the federal government has fully nationalized, others it has partially nationalized in conjunction with the states, and others it has nationalized in parallel with the states. None of these things needed to be, or should have been, nationalized.
Full nationalization
The federal government has fully nationalized immigration. In Article I, Section 8, Clause 4 of the Constitution, Congress is granted the power to “establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” Pursuant to this authority, Congress may dictate the terms and conditions by which a foreigner can become a U.S. citizen. And it has. The naturalization power is exclusive; that is, the states may not impose their own terms and conditions by which foreigners can become U.S. citizens. Although the federal government’s authority to also enact and enforce immigration laws is generally accepted, “No direct authority has been delegated to Congress by the Constitution,” as Supreme Court justice Samuel Nelson wrote in a dissenting opinion in the Passenger Cases (1849). This lack of authority is something that Judge Andrew Napolitano has pointed out on several occasions — to the chagrin of some conservative immigration opponents. Indeed, as explained by Ryan McMaken, editor-in-chief at the Mises Institute, “It was not until the twentieth century that the federal government began to insist that it had a monopoly on immigration law, and that the states were excluded from exercising their own powers in the matter.”
The result is an immigration police state, as described by John Whitehead: “Masked gunmen. Tasers. Tear gas. Pepper spray. Unmarked vehicles. Intimidation tactics. Brutality. Racial profiling. Children traumatized. Families terrorized. Journalists targeted. Citizens detained. Disabled individuals, minors, the elderly, pregnant women, military veterans — snatched off the streets. Private property destroyed.” There is a difference between naturalization and immigration. If there are to be immigration laws, then they must be enacted at the state level. This, of course, doesn’t mean that there should be such laws, only that there is no role for the federal government.
The federal government has fully nationalized retirement. Social Security is funded by a 12.4 percent payroll tax (split equally between employers and employees) on the first $184,500 of employee income. Yet, the federal government does not have a retirement account with every American retiree’s name on it where it deposits Social Security taxes withheld from paychecks. Social Security taxes collected are not even dedicated to paying current benefits. They are immediately deposited in the federal treasury and spent to purchase goods and provide “services.”
The government has set the “early” and “full” retirement ages and established benefit levels based on an arbitrary formula that has nothing to do with the amount of Social Security taxes paid. Paying into Social Security is mandatory whether or not one ever intends to sign up for benefits. Employers who don’t withhold Social Security taxes from their employees’ paychecks can face severe penalties. Social Security has fostered dependency on the government and shifted responsibility from the individual to society. It has also hamstrung politicians, who tremble at touching the “third rail” of politics. Yet the Social Security program is nowhere authorized by the Constitution. If there are to be government retirement programs, then they must be enacted at the state level. Again, this doesn’t mean that there should be such programs, only that there is no role for the federal government.
Partial nationalization
There are other things the federal government has partially nationalized in conjunction with the states. Here are four examples.
The Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, is a federal program administered by the Food and Nutrition Service of the U.S. Department of Agriculture and operated by the states.
Medicaid is government-funded health care for eligible low-income adults, children, pregnant women, elderly adults, and people with certain disabilities. It is jointly financed by the federal government and the states, but it is designed and administered by the states within federal guidelines.
Temporary Assistance for Needy Families (TANF) is a federally funded, state-run welfare program that provides cash assistance to low-income families with children.
Unemployment compensation is overseen by the U.S. Department of Labor but is administered and mostly funded by the states. Paying federal and state unemployment taxes is compulsory for most all employers.
If there are to be government nutrition, health care, welfare, and unemployment programs, then they must be enacted at the state level. But as has been said, this doesn’t mean that there should be such programs, only that there is no role for the federal government.
Parallel nationalization
There are other things that the federal government has nationalized in parallel with the states. Here are four examples.
Every state has laws that prohibit or regulate gambling, prohibit various forms of discrimination, regulate alcohol production and sales, and prohibit or regulate drugs. But the federal government also has laws concerning these things. Why?
In the case of gambling, discrimination, alcohol, and drugs, the Constitution not only doesn’t authorize the federal government to prohibit or regulate gambling, prohibit various forms of discrimination, regulate alcohol production and sales, or prohibit or regulate drugs, it doesn’t even mention gambling, discrimination, alcohol, or drugs. Therefore, the Wire Act, the Gambling Devices Act, and the Illegal Gambling Business Act are illegitimate laws. There is no authority for the Equal Employment Opportunity Commission or the Civil Rights Division of the Justice Department. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Alcohol and Tobacco Tax and Trade Bureau (TTB) should be abolished, and the Controlled Substances Act, drug schedules, and Drug Enforcement Administration should not exist.
If there are to be laws concerning the prohibition and regulation of gambling, discrimination, alcohol, or drugs, then they must be enacted at the state level. But as has been said, this doesn’t mean that there should be such laws, only that there is no role for the federal government.
No nationalization
The Constitution nowhere authorizes the federal government to feed anyone; keep people from harming themselves; establish a safety net; fight poverty; offer job training; give block grants to the states; stamp out vice; prohibit the manufacture, sale, or use of any product; provide welfare, subsidies, or assistance; provide health care; prevent or punish discrimination; promote virtue and traditional values; or help the sick, aged, infirm, disadvantaged, underprivileged, or disabled.
This is true whether the federal government fully, partially, or in parallel nationalizes the enforcement of these things. This is true no matter how many members of Congress or their constituents think the federal government should have some role to play. This is true no matter how many “Constitutional conservatives” make excuses for the federal government being involved in these things.
Now, none of this means that the state governments should have retirement or unemployment programs; provide health care, food assistance, or welfare; or prohibit or regulate drugs, alcohol, gambling, or discrimination. To do so is not a proper role of government — even on the state or local level. But if any of these things are to be done, the federal government should have no role. For the federal government to do so does violence to the Constitution and the limited government established by the Founders.
This article was originally published in the May 2026 issue of Future of Freedom.
