Concurrent Jurisdiction over illegal immigrants

 

Overview

Concurrent Jurisdiction - Overview

Arresting illegals

Court Jurisdiction and Due Process over illegal immigrants

State Laws as Extension of Federal Laws

Creating Legislation over illegal immigrants

Shared Borders

Trespassing

City Jurisdiction vs. State vs. Federal


Overview

The Federal Government has not been enforcing illegal immigration laws.

Therefore, many state governments and many cities are enforcing illegal immigration.

Is this constitutional? Absolutely.

 

There are many people who favor amnesty for illegal immigrants who use the following argument: Immigration is a federal issue, regarding federal laws, and therefore, the states (and cities) have no right to create laws or enforce laws which relate to illegal immigration.

This is absolutely false.

Any state, any city, has absolute right to create laws and enforce laws which put an end to the problems of illegal immigration.


Concurrent Jurisdiction - Overview

 

Overview

The concept of "concurrent jurisdiction" is this:

• More than one jurisdiction has the same authority over persons or legal issues.

 

Examples of "Concurrent Jurisdiction"

Here are some well established areas of "Concurrent Jurisdiction":

 

1. The Power to Tax

• Both state governments and the federal government have the power to tax citizens within their borders.

 

2. Diversity of Citizenship

• A lawsuit can be brought into either state court or federal court if:

a) the plaintiff and the defendant are from two different states, and

b) the amount in question is over $75,000.

 

These are just a few of the many areas where different jurisdictions have the same authority to legislate and enforce laws on the same topics.

 


Arresting illegals

 

Overview - Key Points

• All local law enforcement officials have the right to arrest someone who breaks a federal law.

• All local law enforcement officials have the right to arrest someone who commits a felony (whether it is a state felony or federal felony).

• All citizens have a right to arrest someone who commits a felony (under the proper conditions). (See Citizen's Privilege to Arrest)

 

Concurrent Jurisdiction and Arresting for Federal Crime

• Therefore, law enforcement at all levels (local, state, and federal) have the right to arrest someone who has committed a federal felony.

• And, therefore, local law enforcement, state law enforcement, and federal law enforcement each have concurrent jurisdiction over the enforcement of federal crimes.

 

Concurrent Jurisdiction and Arresting illegal immigrants

• Any person who is in the United States illegally has committed a federal crime. These crimes are felonies.

• Since all levels of law enforcement have concurrent jurisdiction over federal laws, then all levels of law enforcement have concurrent jurisdiction over enforcing federal immigration laws.


Court Jurisdiction and Due Process over illegal immigrants

 

Overview

• If the illegal immigrant broke a federal law, then this immigrant will be delivered law enforcement officials, and have a hearing in a federal court. This will be the situation for:

• an immigrant who entered into this nation illegally.

• an immigrant whose visa has expired and yet has remained here illegally.

 

• If the illegal immigrant broke a state law, then this immigrant will be delivered to local law enforcement officials, and have a hearing in state or local court. This will be the situation if the immigrant broke a law related to:

• real estate, property, leasing

• trespassing

• driving, drivers licenses, driving accidents

• assault

• theft

 

• If an immigrant broke both Federal and State laws, then these immigrants can be tried in either Federal Court of State Court.

• The law enforcement personnel who detain these immigrants, and the lead prosecutors in that area can choose either to prosecute for the Federal Crimes or the State Crimes.

• Since the Federal Government is not doing much of its job in enforcing the Federal immigration laws, many States choose to prosecute the immigrants for the state crimes they have committed.


State Laws as Extension of Federal Laws

 

Overview

• States have the right to create their own laws which expand on Federal laws.

• This has been done for many, many topics throughout all the 50 states.

• Therefore, each state has the right to create its own laws which extend the Federal laws.

 

Federal law trumps State law

It is true, that Federal Law trumps state law. This means that if state law and federal law conflict, then federal law will control.

However, this does not mean that the federal law is absolute. States can write their own laws.

 

Federal Law as minimum/maximum; state can extend

Federal law is set as a minimum level, or a maximum level (depending on the purpose of the law.)

However, the Federal Law is not an absolute law in a state.

Each state can make the minimum higher, or the maximum lower, as the state chooses.

As long as the state law does not go lower than the federal minimum (such as for the minimum wage), or exceed the federal maximum (such as for pollutants) then the state law is perfectly valid.

In fact, the state law, by extending the federal law, can make a better environment for the residents of the state.

 

Examples of State Laws Extending the Federal Laws

1. The minimum wage

The Federal Government sets a "minimum" for the minimum wage.

Yet, any state can raise its minimum wage to a higher value. Several states do indeed have a higher minimum wage than what the federal law stipulates.

 

2. Environmental control

The Federal Government sets a "maximum" for the levels of emissions (such as from a coal power plant.) This is the highest level allowed by the Federal government.

Yet any state can set stricter standards. This means that a state can lower the maximum level of that pollutant emitted within that state.

 

3. Criminal law (rights, due process)

The Federal Government sets a "minimum" level of rights for anyone arrested and prosecuted by the government for a crime.

Yet, any state can expand on these laws, allowing more rights, or greater due process, for a crime (state or federal crime) than what the minimum set by the federal government.

 


Creating Legislation over illegal immigrants

 

Overview of State Laws

Most laws which we live by are state laws, not federal laws.

In fact, there are only a few areas where the federal government has exclusive jurisdiction.

For the vast majority of legal areas, a state has exclusive jurisdiction (because the Constitution does not allow the federal government to get involved),

In most other areas, the state has joint jurisdiction with the federal government.

Furthermore, in many of the joint jurisdiction areas, the state has primary jurisdiction because of the American principle of "local government serves the people best."

Therefore, as a general rule, a state government can create legislation in almost any area it wishes.

 

Common areas of State Laws

Common areas of State Laws include:

• Property

• Licensing (drivers, professional)

• Contracts

• Trespassing, Invasion of Privacy, Identity Theft

• Assault

• Marriage

 

 

State can create laws in any of those areas

Therefore, a state can create legislation in any of these topics.

As long as the state meets the minimums (or maximums) as specified above, then the state law is acceptable.

 

Note that many of these areas of laws above are areas being questioned by the pro-illegal immigration crowd as beyond the authority of the state legislature (or city councils). Remember, those criticisms have no validity.

 


Shared Borders

 

Overview

Border states have an additional form of concurrent jurisdiction: national borders.

Texas, Arizona, New Mexico, and California each have a southern state border which coincides with the Federal border.

Therefore, each border state has concurrent jurisdiction (over its southern border) with the Federal Government.

 

What the Border States can do

The border states can take extra steps of enforcement along the southern border.

These steps are in addition to any enforcement supplied (or supposedly supplied) by the Federal government.

These additional enforcement measures do not apply to any of the internal states, but are perfectly legal along the border states.

Some of these activities include:

• State law enforcement patrolling the southern border

• State law enforcement arresting persons who cross the southern border illegally

• Detaining illegal immigrants until the federal law enforcement transfer the immigrants to a federal facility for processing

• Building a wall along the southern border

 

What the Border States cannot do

The border states cannot:

• change the requirements for who is allowed or not allowed to cross the southern border.

• add or reduce requirements for status as a legal visitor or legal immigrant.

• create laws related to interstate commerce


Trespassing

 

Trespassing and illegal immigration

• "Trespasser" is a person who is on property without permission of the owner.

• "illegal alien" is a person who is in the United States without permission of the United States Government.

• Thus, an illegal alien is a form of trespassing, and can be prosecuted as such.

 

Trespassing and State Law

Trespassing laws are usually defined under state law.

Thus, each state can:

• define trespassing

• enforce trespassing laws, including:

• arresting

• holding trials

• jail sentencing


City Jurisdiction vs. State vs. Federal

 

Everything we have said about State vs. Federal Jurisdictions, as being concurrent, applies as well to City Jurisdiction vs. State Jurisdiction.