What’s Wrong with the World

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Imagine...

I'd like to beg the indulgence of the reader for a few moments. I'd like to request that you, gentle reader, imagine a fine little parish church, Catholic or Orthodox, with a vibrant and devout community of parishoners who have sacrificed appreciably for that church as an expression of their fidelity to Christ, one another, and their Faith. Imagine, further, that because of their sacrificial devotion, their church and parish hall are not merely exemplary as ecclesiastical facilities, but immaculately maintained - and situated in a geographically desirable location.

To continue with this little indulgence, imagine that this parish community, for whatever reason, somehow slackens in its devotion, not necessarily religiously, but materially, finding the upkeep of their buildings and grounds onerous where once this burden was shouldered joyfully. So, in order to obtain the funds with which to hire others to perform what they once did for themselves, they decide to make available their parish hall to any other Christian group that might desire to use it for worship. They will rent out the hall. And suppose that the group that approaches them is a Pentecostal congregation.

At this stage, permit me to interject that in this imaginative indulgence there are only descriptive terms. The salient fact is that of difference.

This Pentecostal congregation being sizable, sizable enough to fill out the parish hall, and more than sizable enough to pay a tidy sum in rent, the parishoners decide, with some grumblings of dissent, to permit them the use of the hall. And things proceed tolerably smoothly for a time. Though there occurs some overlap in the timing of the services, and though there are occasional awkward moments - such as when a procession of the parish is regarded with disdain by the Pentecostals as just so much man-created flummery, or when the tongues-speaking during the Pentecostal service becomes too passionate - things are not so bad that the circle of dissenters expands in number.

The odd sort of reciprocity continues, and the faction of the parish which conceived and supported it remain pleased, both with the results and with themselves. But the circle of dissenters has widened. The handsome rent payments seem not to cover the additional costs of maintaining the grounds and facilities under the burden of several times the original membership - or perhaps, given that the financial officers on the parish council are supportive of the relationship, no one really knows what is happening to these funds. Perhaps they are not being used for the parish at all. And, to make matters still worse, the Pentecostals have become more adversarial, there sermons regularly decrying the alleged evils of the liturgical congregation from whom they rent their "own" facilities. Their members regularly accost the parishoners to berate them and attempt to persuade them that their faith is corrupted, a declension from the purity of Apostolic Christianity. Some even begin to evidence a spirit of entitlement, as though they are owed some sort of a deference, that it is somehow 'unjust' for 'heretics' to possess such beautiful facilities, or at least to charge for the use of them.

And so a spirit of rancour grows. Unpleasant incidents multiply. And the priests of the parish finally opt to consult with their bishop as to how best the situation might be rectified, the disputants mollified. To their dismay, however, the bishop advises them to do nothing, declaiming that it is a solemn duty of the Christian faith to offer succour and hospitality to the less fortunate, and that sacrificially. The burdens and unpleasantnesses of the relationship with the Pentecostals must be born, for it would be a grave evil to turn away brothers in Christ.

Meanwhile, a new parish council election has been held, and the dissenters have carried the day, replacing the majority of the supporters; they are determined to remonstrate more fully with the bishop, to prevail upon him to bless the termination of a bond which has become unsustainable. And yet, their bishop refuses, enjoining them against any such action and decreeing that only a member of the episcopate could possess the authority to permit a parish to dissolve such a relationship. Whereupon, in a spirit of great vexation and perplexity, they decide that, for the sanctity of their own religious community, and in spite of the injunction of the bishop, they must unilaterally sever the relationship; they evict the Pentecostals, and entrust the consequences to the Almighty.

And then the bishop chastises them for their alleged 'uncharity', even to the point of demanding that some indemnity be paid to the Pentecostals.

I should note, then, that while no analogy or allegory is exact in all of its details, it seems evident to me that the parish would be wholly justified in its actions, just as a local community would be wholly within its rights under the natural law to enforce the law against illegal immigrants, regardless of the status of the positive law and the disposition of those declining to enforce it. Law exists for the security and common good of the community, and any authority which, by declining to enforce it, injures the good of the community, does not deserve such deference. If the superior authority, by its dereliction of its duty, whether born of indifference or malignity, pursues a course which entails the destruction of a community, there exists a law higher than the positive law, without which the positive law is nothing but an empty cistern.

Perhaps, I am saying, we will have to wrest our federalism and our communities back from those who have usurped them. The all-or-nothing stakes imposed upon struggling communities do not even rise to the level of sheer perversity. As Rod Dreher notes:


The message from the federal government, therefore, is, "We won't protect you from this invasion of lawbreakers, but you don't have the right to protect yourselves either."

Furthermore, as Dreher observes in another post:


This is not going to end pretty, I fear. You cannot tell people that they have to be prepared to abandon their homes because the government is unwilling or unable to enforce the law against illegal immigration, and expect them to sit back and take it forever.

No, people cannot be obliged to endure this at all, let alone indefinitely, and the eventual consequences could be less than pleasant. Which, I am saying, is why a little - yes - defiance now will likely avert greater harms in the future. The law is not above the good of the community.

Comments (19)

I don't even know why you have to say "regardless of the state of positive law." The illegals _are_ in violation of the positive law. It's the executive branch of the federal govt. that refuses to enforce it. What positive law would local communities be defying by ousting illegals? Some court order based on a kooky interpretation of the Constitution?

What sort of ouster do you have in mind, by the way? Some sort of municipal fines for employers that hire illegals? Sounds good to me.

Well, the consensus seems to be that "federal law" forbids the local enforcement of immigration law. Whether that is statutory or merely the ukase of some usurper of a judge, I cannot say, as I am not a lawyer.

I would envision stiff fines for the employers of illegal labourers as well as for the landlords of illegal immigrants generally. I actually believe that the fines should be quite punitive, ideally: of the magnitude of $1000 for each illegal immigrant employed/rented to, per day of the duration of the offense. I'm rather taken with this sort of math; then again, the whole regime of privatized profits and socialized costs must be ended, and that decisively.

I _cannot_ believe that that is federal law. It's gotta be some stupid judge's idea of "equal protection." You know the junk: "But if you have that sort of law, then you will be examining Latinos more because they might be illegals, and that will be racial discrimination." I know this type of argument has been _made_ against local ordinances against renting to illegals, but I don't know if it's been accepted by a court.

Interestingly, if that sort of argument were allowed, it also prohibits federal enforcement of federal law...and on the same grounds...

It wouldn't really, legally, be local enforcement of federal law. At least, not as far as I can see. It could simply be a local ordinance that made reference to federal law: "If you employ someone who is in fact here in violation of federal immigration laws, you will be fined X for breaking our local law against employing such people." I don't see how that possibly can be against federal law.

Jonathan, you listening? Do you know what sort of half-baked argument has been made here about these local laws?

By the way, Maximos...er...You sound like a congregationalist in your example. :-) All the Baptists I grew up with were very firm about local church ownership of church property and congregational government in the use of said property. I thought people who believed strongly in hierarchical church government were supposed to favor the authority of bishops to tell people that sort of thing. The bishop, unlike the president, isn't elected by the people or answerable to them. His is supposed to be a divinely ordained, top-down position. :-)
(Don't let me annoy you.)

Unfortunately, this:


U.S. District Judge Sam A. Lindsay wrote in granting a temporary restraining order that only the federal government can determine whether a person is in the United States legally.

Instead of deferring to federal officials, Farmers Branch has created its own classification to determine which noncitizens may rent an apartment, the judge ruled, also noting that the city appeared to have borrowed from federal housing regulations to define who may lease in the suburb.

...Leaves the question of the precise nature of the violation unspecified. It is difficult to conceive of how Farmers Branch, as discussed in the linked DMN piece above, could have replaced a federal classification of immigrants with its own: is there really some dispute as to whether "illegal" immigration is, in fact, illegal? It almost sounds as though the judge presupposed that the lack of federal interest in the enforcement of immigration law grants the illegal immigrants some sort of quasi-legal status.

There may not be any mention of disparate impact or profiling. Then again, I'd rather read Heidegger or Derrida than a raft of legal opinions. Seriously.

Well, I hardly meant to sound like a Congregationalist, what with being Orthodox and all; I certainly believe in Apostolic succession and the authority of the episcopacy. Nevertheless, Orthodox history affords an abundance of examples of resistance to wayward hierarchs, though some of them would not make for irenic reading in mixed confessional company. That is what I intended by the bit about entrusting the consequences to the Almighty: it might be necessary to defy a bishop on a particular point when he has taken leave of his reason, but this is an exception to the norm, even the proof of the norm.

I _cannot_ believe that that is federal law. It's gotta be some stupid judge's idea of "equal protection."

It's federal preemption, not equal protection. Where the federal government has exercised exclusive authority in an area of federal policy either by express preemption or enactment of a comprehensive regulatory scheme, the states have no right to set up independent enforcement regimes. See the section "Background on Preemption of State and Local Immigration Regulation" of this article for a brief summary. In that respect, it is more like what Jeff had in mind, a question of whether the states have authority to take back the regulatory authority when the federal regime is a failure. However, given the exclusive authority of the federal government in international matters, I think that all such attempts would likely be declared unconstitutional without much hesitation. It seems to be one of those things that states are constitutionally simply required to take, just as they are required to take citizens from other states coming to their states. In that case, it is entirely unlike the case of renting one's facilities to someone else. There, you aren't being forced to rent, but the state has some obligations imposed on it by the federal government.

Nice analogy.

Probably better to use orthodox or another faith-tradition, like Episcopalian, where dissent is more easily allowed.

Roman Catholic tradition teaches that obedience to the Bishop/Arch-Bishop/Pope supercedes taking the law into their own hands, so to speak.

I think a Catholic congregation does have the ability to appeal to the next higher authority, so in this case, you could argue the analogy of taking the issue to the courts in the secular world.

Thanks for the info, Jonathan. I never heard of the doctrine of preemption before and am assimilating it. I can't say I think much of it at first blush. For one thing, from that document, it seems that it's sometimes hard to tell when it applies. But for another, and even when Congress explicitly invokes preemption, it seems amazingly arrogant of Congress to say, "We've already got a system of penalties for this. You states and local entities may not exact additional penalties, whether we enforce our own laws against this or not." They just get to _say_ that? I mean, how convenient. This creates almost a perverse incentive for the federal government to pass a system of sham regulations, say that that "fills" or "covers" a particular field entirely, invoke preemption explicitly, then not enforce the regulations, thus insuring that no one can penalize the behavior in any way at all.

I could understand if the local ordinance in some way conflicted with the federal law--encouraged activity federal positive law penalized, for example. But here it's just saying that the same thing that is against federal law is against local law, too.

As for the quotation Maximos gives, that seems absurd. Private employers themselves are _required_ by federal law to determine as far as they can that their workers are in the country legally. So obviously it can't be the case that everyone but some federal agency is _incapable_ of telling if someone is here legally or illegally, or the private employers couldn't be required to do so!

To the extent that my nonlegal mind comprehends the doctrine of preemption, I have few doubts that local legislation against illegal immigration would be deemed unconstitutional. And, as Lydia notes, this does create a system of perverse incentives, or at least the appearance of the same, inasmuch as the federal authorities enforce immigration law only when doing so is propitious for political purposes, when enforcement might be used to create the illusion of responsiveness to the popular will.

In the positive sense, then, this might be something that communities are obliged to lie back and take; but I hardly think that this exhausts the question. A federal government which by its voluntary dereliction decrees irrevocable and undesirable alterations in the fabric of community life is a government which, at a minimum is flirting with illegitimacy. Certainly, if one of these cases should reach the Supreme Court, and the expected ruling is returned - as, presumably, it must - then it might well achieve open illegitimacy.

The thing is, preemption is not mentioned at all in the Constitution. In fact, the 10th Amendment could be taken to indicate that if some power is not _explicitly_ withheld from the states *by the Constitution*, they are allowed to use that power. And this, of course, is not. In fact, during the whole legitimacy crisis of the Virginia and Kentucky resolutions, I seem to recall that they argued that the federal government did not have the authority _itself_ to regulate immigration, as this was not granted to it by the constitution. (Of course, at that time, "immigration" was sometimes a code word for the slave trade, and they were in _favor_ of whatever they meant by "immigration" and were angry that the feds seemed to be limiting it.)

So it seems to me that there's a real question as to the constitutional validity of the doctrine that Congress can preempt state action by a) creating a detailed system of regulation in some area and b) stating in federal law that it intends to preempt state and local law.

The counter-doctrine we are reaching for here, I am afraid to say, is known as Nullification or Interposition; and Lydia, it seems to me, is quite right to invoke the Virginia and Kentucky Resolutions. That these potent documents carry the authority of two obscure men called Jefferson and Madison, would seem to strength the case for the constitutionality of this doctrine.

But I am afraid, literally afraid (as I must confess), to say that what we are grasping at is Nullification because the ancestry of this doctrine after the aforesaid Resolutions is one tainted by Southern slavery.

In strict logic, it seems to me that the South Carolinians during the Nullification debate had the better argument; but dare we actually lay hold of this doctrine today? Should we risk the rhetorical and historical comparisons?

The Virginia and Kentucky Resolutions also open up another tangled debate, because they were penned, of course, in opposition to the Adams Administration new security laws, known to history as the Alien and Seditions Acts.

One conclusion we ought to draw from all these pregnant connections and historical echoes is, again, how rich a subject the American political tradition is. We Americans -- some of our greatest men -- have been, we might almost say, on all sides of all big political questions. What a heritage we have!

I do believe, if I might key off of Paul's mention of the doctrine of nullification, that this is precisely what we need to resurrect. It is imperative that some form of institutional, political resistance to these usurpations and absuses be established, though it is also imperative that a new term for this be coined, inasmuch as we must make manifest that our objection is not to who the immigrants are, but to the arrogance of the political and economic establishment in effectively mandating the dissolution of a cultural and political tradition for reasons light and transient. In the end, the maintenance of true cultural diversity, the proliferating variety of ways of life, requires, well, geographical diversity, let us say.

The counter-doctrine we are reaching for here, I am afraid to say, is known as Nullification or Interposition
...
I do believe, if I might key off of Paul's mention of the doctrine of nullification, that this is precisely what we need to resurrect.

That's a states' rights doctrine; the example given was a municipal government. The question at the municipal level is more or less whether some privileged white folks who think they are entitled not to have to look at the illegal immigration problem can move their illegals to the "sanctuary city" one town over. This is not some noble fight to defend American culture; this is yet another attempt of a municipality to allow only good and not bad things in the city. Nothing wrong with that if you can get away with it, but it is of no great moment in the grand scheme of things.

On the other hand, if the sovereign states of California and Arizona (or even Texas) were actually concerned about illegal immigration and correcting it on a statewide level, I doubt they would find much resistance from the feds; they'd likely receive a statutory authorization if they got any static from the courts. But that is clearly not the case. California and Arizona lack the political will even to do what states obviously can do, which is to inform the INS every time someone suspected of being illegal crosses paths with a state agency, whether it's being pulled over, applying for a driver's license, sending children to school, obtaining government benefits, etc.

To make a pun for which I will no doubt hate myself, there is a Mexican standoff between the federal and state government. The feds can't force state cooperation, and, politically speaking, the states can't cooperate unless forced. The only solution is for the federal government to get off its enormous, bloated tuchus and actually start securing the border and deporting people. But the problem is that all the non-Californian, non-Arizonan, non-Texan folks out there evidently have no idea what a massive drain on the economy and threat to national security this is; otherwise, they would have actually done something in the midterm elections. California, Arizona, and Texas have pretty much told people in no uncertain terms that they are incapable of doing anything about the problem and that they have no interest in doing anything even if they could.

As a self-interested Californian, I'm almost to the point of hoping some stupid immigration "reform" (*koff*amnesty*koff**koff*) bill does pass, because once the current illegals can cross the border legally, they aren't going to stay in high-rent, low-service Orange County. Foreign nationals are going to move other places, and they're going to start raiding your education and health care services, not to mention your criminal justice system. To be entirely honest, it can't really get much worse here in SoCal, because the border is nothing but a sieve now, but for all the rest of you, it can, and it will. Good luck with all that. I personally think it would be quite entertaining to see what happens when Indianapolis and Cleveland start getting as many Mexican nationals as Los Angeles.

Anyway, were I you, I'd not concern yourself in the least about preemption. I'd concern yourself about the fact that, in the language of your example, no one at either the parish or diocese level has even the slightest desire to remedy the problem.

Wait a minute, wait a minute. I thought the whole point of preemption was that the feds _wouldn't_ let the states enforce laws in an area the feds already had "preempted." Why do you think, Jonathan, that the feds would make an exception for the states when the same logic that has been used regarding preemption for municipalities would seem to apply to the states as well? And what would such a statutory authorization look like?

Why do you think, Jonathan, that the feds would make an exception for the states when the same logic that has been used regarding preemption for municipalities would seem to apply to the states as well?

For starters, the feds have actively solicited assistance from the relevant state governments, and the governors themselves have volunteered National Guard resources for the assistance of the Border Patrol (see Operation Jump Start MOA). The problem is not that the feds don't want states involved in this area; the problem is that the states can't get involved because of the political dynamics. Even Operation Jump Start required all sorts of carve-outs about National Guardsmen not actually being used in border enforcement (they do other Border Patrol tasks, like flood control, to free up agents for enforcement). If any of the border states showed ANY sign of political ability to further federal enforcement, they would have a regulation authorizing the action signed by the appropriate executive office and dated the previous week.

With municipalities, on the other hand, what interest do the feds have in moving around a small collection of illegals among a handful of cities within state boundaries? They have no incentive to let their regulatory scheme be co-opted by a city as an excuse for demographic control because there are so many more Mexicans around than when the city fathers grew up. But if there were a state law requiring landlords not to rent to illegals or employers not to hire them with a real intent to actually enforce it, the feds would authorize it before the ink was dry on the governor's signature.

Maybe it's just because I've lived in Texas and California for as many years as I have, but I am frankly stunned that people actually think that the states in question are being held back by the feds. Unless we're talking about the atrociously low priority and funding given at the federal level, that's the opposite of the truth. It's the complete lack of voluntary cooperation from state governments that makes enforcement impossible.

And what would such a statutory authorization look like?

See the MOA I linked above for an example.

It seems like the statutory authorization would have to look quite a bit different from the Operation Jump Start MOA if it allowed the states to levy fines for employers who hired illegals, because as far as I can see, Operation Jump Start didn't do that.

But look: I don't understand what harm it does the federal government, what skin, as it were, it is off the federal government's nose, if the town of Ashland, Ohio fines the Amerihost Inn for hiring illegal immigrant maids. Why should the feds care? Why should they act like they would be doing the lower level of government this big favor by _allowing_ them to levy such fines, and like they aren't going to do that unless it's made somehow "worth their while"? Is the issue one of double jeopardy--that once Amerihost has paid Ashland its fine, it can't be charged for the same offense by the feds? I would think that would be easy enough to get around, if the feds really had ambitions to fine Amerihost. The town charges them a fine for hiring part of their illegals and leaves the rest for the feds to charge them with if they want.

But in point of fact, if the feds have no plans of charging Amerihost anyway (as I'll bet in most of these cases they don't), it would seem to me that double jeopardy shouldn't matter. They could just leave the town of Ashland alone to fine Amerihost.

It seems like the statutory authorization would have to look quite a bit different from the Operation Jump Start MOA if it allowed the states to levy fines for employers who hired illegals, because as far as I can see, Operation Jump Start didn't do that.

Oh, I didn't think you were being that specific. It probably wouldn't be just letting the states do whatever; I had in mind some sort of enforcement coordination for the federal law. It would be more like "Employer shall obtain suitable evidence of California or other United State citizenship or lawful immigration in the form of (1)___, (2),____, or (3) ____ prior to hiring; if Prospective Employee fails to produce suitable evidence, Employer shall report Prospective Tenant to State Agency, which shall investigate immigration status pursuant to Federal Authorization and report the results to ICE for enforcement. It shall be a crime punishable by ____ not to obtain the evidence specified in this section or to make the report." So long as the state enforcement wasn't entirely toothless, that could be a significant hit, particularly if the state turned around and prosecuted the people ICE raided.

But look: I don't understand what harm it does the federal government, what skin, as it were, it is off the federal government's nose, if the town of Ashland, Ohio fines the Amerihost Inn for hiring illegal immigrant maids. Why should the feds care?

Just as a general matter, cities and states have no business messing around in matters of international relations. Just imagine if states or even cities could set conflicting international trade policies! There's no way that states are even going to have the competence to know what the effects of those policies are without federal coordination. That's why all such regulations are presumptively preempted; conflicting and overlapping enforcement regimes is a mess when the primary authority doesn't have the power to control it. You might think of it as "If everybody did it, then we'd have a huge problem, so nobody can even start." Therefore, if the subject matter deals with immigration status, that matter shouldn't be regulated by the state without federal authorization. If the federal goverment WANTS to let cities or states do something, it certainly can do so, but if they can just up and take the authority without federal authorization, that would be untenable.

Why should they act like they would be doing the lower level of government this big favor by _allowing_ them to levy such fines, and like they aren't going to do that unless it's made somehow "worth their while"?

I suppose it's a big favor whenever anyone has the power to say whether you can or can't do something.

Is the issue one of double jeopardy--that once Amerihost has paid Ashland its fine, it can't be charged for the same offense by the feds?

Nope. Oddly enough, federal and state laws create separate offenses, so that you can be charged for the exact same conduct under both federal and state law without invoking double jeopardy. It's one of the more unusual exceptions.

It appears as though there exists a perverse asymmetry, in accordance with which states and municipalities, on grounds of the sole authority of the federal government in international affairs, are forbidden to act against illegal immigration absent specific authorizations, while states and municipalities are permitted, whether de facto or de jure, I cannot say, to engage in the sort of impudent nonsense detailed in this story.

The whole business about potentially conflicting enforcement regimes seems to me quite beside the point of the actual reality on the ground in the country. There is not much of an ongoing federal enforcement effort, only the occasional cynical and desultory undertaking, and, on the other hand, an express, positive effort to obviate the very notion of meaningful enforcement under cover of law. The deeper issue, or so it seems to me, is that the formalities of the law have become the weapons of those who would alter irrevocably the forms of life that the law ought to protect. On this question, at a minimum, it is not patriotism that is a last refuge, but in the case of the political caste, the law.

Y'know, I don't see the kinds of regulations in view here as being similar at all to international trade arrangements. (And aren't the latter forbidden to the states in the constitution?)

The definition of illegality for purposes of the city ordinance (struck down under the doctrine of preemption) was set by the U.S. government, who has set up the system of paperwork that people are _supposed_ to get. There's no question of the local sheriff personally getting a truck and driving large numbers of immigrants across the border and making them stay there with guns, nor driving them through other states. All of that, I can see, could create a mess. There's no question of people's being _literally_ legal immigrants in one city but illegal in another. The legality-illegality is defined by the federal government; it's just that they aren't enforcing it.

Rather than any of this, the regulation in view involves fines to an employer or renter operating within a city for employing or renting to illegals. It seems to me like an intra-municipal issue and one that could do no harm *even if* "everybody did it."

It doesn't seem to me anything like a city's issuing its own currency or making its own treaties with foreign nations--that's why both of these are prohibited to lower levels of government by the Constitution.

Moreover, if it's really true that the U.S. government would be incredibly eager to allow whole states to levy such fines, it can't really be true that it would cause such chaos for lower levels of government to levy their own fines.

And, as Maximos points out, the point is pretty moot because there's not much of a federal effort for the cities to stay out of the way of.

There is not much of an ongoing federal enforcement effort, only the occasional cynical and desultory undertaking, and, on the other hand, an express, positive effort to obviate the very notion of meaningful enforcement under cover of law.

Any state could shut down all of those efforts if it so chose. The federal government could simply enforce its own laws if it so chose. No one is interested in enforcing the law, and you can't really thwart a dead letter.

Moreover, if it's really true that the U.S. government would be incredibly eager to allow whole states to levy such fines, it can't really be true that it would cause such chaos for lower levels of government to levy their own fines.

To be comprehensive, I should point out that I doubt they would be incredibly eager to allow whole states to levy such fines except as a bribe for assisting the feds, but I was assuming that the state would not have a burning desire to act independently of federal agencies on these issues. I hadn't really considered a state simply going maverick, which the state might do to drive illegals to other states. In that case, the feds might not be so cheerful about it, although they might go for it anyway in the hope that more illegals would be driven back across the border than into other states.

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