In the Obama administration’s brief to the Supreme Court against Arizona’s Immigration Law, Solicitor General Donald Verrilli invoked the John Jay’s Federalist #3 to suggest that the founders would not want to allow Arizona to enforce immigration law.
"Petitioners assert that Arizona’s status as a border State that is particularly affected by illegal immigration justifies its adoption of its own policy directed to foreign nationals. But the framers recognized that the 'bordering States…will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury,' might take action that undermines relations with other nations, and regarded that possibility as a further reason to vest authority over foreign affairs in the National government."
It is true that Jay was concerned that border states might instigate unnecessary conflicts. However, he was not speaking of them taking vague “action that undermines relations with other nations” as Verilli paraphrased him. Jay was specifically concerned that the border states would “by direct violence, to excite war with these nations.”
Jay wrote Federalist #3 in the days of an open frontier against the territories inhabited by sometimes hostile Native Americans and the great powers of Europe. He made it clear that he was speaking of actual violent conflicts that would lead to war, not internal policies that would cause other governments to criticize us.
Until the Civil War, the states were able to control foreign immigration admissions through their ports. Therefore, when Jay wrote his concerns about border states, he was certainly was not thinking about immigration policy, much less states enforcing existing law and exercising state police powers within their own borders.
Furthermore, the founders would never speak of vesting authority in a “National government.” In Federalist # 39, James Madison specifically he stated that, while some aspects of the Constitution may be national, the “extent of [the government’s power]… is federal, not national.”
Verrilli also, omitted the subtitle of Federalist 3: “Concerning Dangers From Foreign Force and Influence.” This follows, as the Obama administration has explicitly cited foreign influence as a reason to overturn SB 1070. In an affidavit against SB 1070 Obama’s deputy secretary of State James Steinberg, "has provoked broad-based criticism and concern among U.S. allies in the Western Hemisphere, by human rights experts, and in numerous intergovernmental forums. Nor can such criticism be readily dismissed." Among those he cited were socialist dictators like Bolivia’s Evo Morales who had praised protestors who tried to burn down the American embassy.
I do not believe that the Arizona should intentionally antagonize any foreign government. However SB 1070 does no such thing. It does not empower Arizona to patrol the Mexican Border, set immigration quotas, or even deport illegal aliens. It merely empowers local police authority to assist federal immigration officials by enforcing. This has nothing to do with foreign policy, and everything to do with the safety of the citizens of Arizona.
As long as we are talking about John Jay and the Federalist Papers, I may as well note that he was at odds with other of Obama’s justifications for amnesty.
In his speech calling for “Comprehensive Immigration Reform,” in El Paso, TX; Obama approvingly cited Rupert Murdoch that “American ingenuity is a product of the openness and diversity of this society. Immigrants have made America great as the world leader in business, in science, higher education and innovation.”
In addition to the fact that both Obama conflates legal and illegal immigrants together, John Jay thought quite differently about the value of diversity. In Federalist #2, he wrote, “Providence has been pleased to give this one connected country to one united people -- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.”
In Shakespeare’s Merchant of Venice, the merchant Antonio famously said, “Even the devil can cite scripture for his purposes.” Apparently, the Obama administration can cite the federalist papers for their own purposes as well.
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