Even really good ideas are hard to sell, so let me try again. Congress should pass a law giving states wide latitude in using state laws to control immigration. Not all states have the same attitude toward the presence of illegal immigrants, so let them react differently, using their own laws to reflect the prevailing wisdom of the state.

The U.S. Constitution, in Article I, Section 8, says Congress shall have the power to “establish a uniform Rule of Naturalization.”  The federal government has used that power to shut out states entirely when it comes to regulating immigration, or even enforcing federal immigration rules. Congress would not be giving up its constitutionally mandated powers and authority over rules of naturalization by allowing states to control the activities of people who are, under federal rules, in this country illegally.

States may already have the right to do so, but no one knows for sure. We may find out, thanks to a police chief in New Hampshire, who believes he has a duty to protect his citizens from all lawbreakers. New Ipswich Police Chief W. Garrett Chamberlain arrested an illegal immigrant for trespassing. Another New Hampshire police chief followed suit. None of the 10 cases has yet gone to trial. When they do, a judge will rule whether the police chief has the authority to act as he did.  The trespassing case could eventually make its way to the U.S. Supreme Court.

Attorney Mona Movafaghi, who represents three of the immigrants cited so far in New Hampshire, says using state law to enforce immigration laws “is not permissible under the U.S. Constitution. The power to regulate immigration is an exclusive power given to the federal government,” she said. 

Congress does not appear to be interested in taking strong action to control illegal immigration, and I too am somewhat ambivalent about the issue. I believe it would do great harm to the economy if the labor force were suddenly reduced by the 10-million or so illegal immigrants presently working in United States.

Ambivalence is a condition best cured by federalism. Let the states decide.

I believe state and local governments are in the best position to determine whether the presence of illegal immigrants is a net plus or minus for their localities, and they should have permission to control their presence by enforcing state laws (trespassing or otherwise) to make them welcome or not.

The Illegal immigrants would come to know quickly where they can work with impunity and where they cannot. States that want some of the undocumented labor force, but can’t handle too much, could control the flow with the same kind of selective enforcement techniques they use to enforce speed limits.

If states had wide latitude in regulating the activities of immigrants who are in violation of federal immigration laws, the problem posed by illegal immigrants would diminish considerably without simultaneously diminishing their contribution to the economies of both the U.S. and Mexico.