S.B. 1070:
THE UNCONSTITUTIONAL AND INEFFICIENT LAW
THAT MAY JUST FIX IMMIGRATION†
Margaret D. Stock
The immigration issue is as old as America it self. One of the
Founders‘ primary complaints against King George was that he
restricted immigration.
1
This complaint carried such weight that it was
one of the grievances listed in the Declaration of Independence.
2
Because
of the Founders‘ apparent open-border mentality, the Constitution only
mentions two immigration powers, and delegates them both to Congress.
First, Congress was given the power to restrict human trafficking, better
known to history as ―slavery,‖ after 1808.
3
Congress was also given
exclusive pow er to provide ―an uniform Rule of Naturalization.‖
4
James
Madison explained in Federalist Paper Number 42 that Congress was
given this powe r to establish uniform ―rights of citizenship‖ and
―privileges of residence,‖
5
and therefore prevent the states from setting
different standards for citizenship.
Although the Constitution is relatively silent on the question of
immigration, it does not follow that the federal government is not
primarily responsible for regulating immigration. Indeed, the federal
government has possessed virtually exclusive power to regulate
† This speech is adapted for publication and was originally presented at a panel
discussion as part of the Federalist Society‘s National Lawyers Convention on Civil Rights:
Immigration, the Arizona Statute, and E Pluribus Unum in Washington, D.C. on
November 18, 2010.
Adjunct Instructor in the Department of Political Science, University of Alaska
Anchorage, and Lieutenant Colonel (Ret.), Military Police Corps, United States Army
Reserve. Ms. Stock holds an undergraduate, master‘s degree, and J.D. from Harv ard
University and a Master‘s in Strategic Studies from the Army War College; she is a
member of the bar of the State of Alaska. The opinions expressed in this article are the
Author‘s own.
1
DAVID SKILLEN BOGEN, PRIVILEGES AND IMMUNITIES: A REFERENCE GUIDE TO
THE UNITED STATES CONSTITUTION 6 (2003).
2
THE DECLARATION OF INDEPENDENCE para. 9 (U.S. 1776) (―He has endeavoured
to prevent the population of these States; for that purpose obstructing the Laws for
Naturalization of Foreigners; refusing to pass others to encourage their migrations hither,
and raising the conditions of new Appropriations of Lands.‖).
3
U.S. CONST. art. I, § 9, cl. 1 (―The Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may
be imposed on such Importation, not exceeding ten dollars for each Person.‖).
4
U.S. CONST. art. I, § 8, cl. 4.
5
THE FEDERALIST NO. 42, at 236–37 (James Madison) (E. H. Scott ed., 1898).
