KEN BARTON: Immigration, jurisprudence and the 11th Amendment

Submitted to IPR by Libertarian Party of Tom Green County vice chairman Ken Barton:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

That is the 11th Amendment to the U.S. Constitution, ratified Feb. 17, 1795, in its entirety.

What does this mean in simple terms? The federal court system, with its authority and limitations spelled out in Article III of the U.S. Constitution and its subsequent amendments, has no jurisdiction when citizens of another state or country sue an individual state of the union. The implication is that the courts of the state named as the defendant shall be the ultimate authority in deciding the case.

So taking this into consideration, what do federal Judges Susan Bolton, Thomas Thrash and Clark Waddoups have in common?

They each have allowed citizens of a foreign country to file or join lawsuits in U.S. District Court against individual states. They were faced with a choice: either prohibit the foreign country from participating in, or filing, the suit or send the suit to the appropriate state court. In each case they did neither.

They turned their back on the Constitution, the oath they swore to it and, ultimately, the rule of law. They chose, instead, to engage in judicial activism. Through their action, they implied their knowledge superseded the Constitution, redefining their role from interpreting law to writing it.

Bolton serves the U.S. District Court in Arizona, Thrash, Georgia and Waddoups, Utah — three states fighting for the right to implement recently passed legislation designed to defend their respective taxpayers from the undue burden caused by the presence of illegal immigrants.

In Arizona, Bolton allowed Mexican lawyers to file a brief in the case of the United States of America v. Arizona, on behalf of Mexican citizens who may visit Arizona.

Since she allowed the brief to be filed, one must assume she considered it in the decision she handed down on July 28, 2010. Her ruling prohibited the most significant measures of the legislation from being implemented, effectively neutralizing it.

On April 11, in a sharply split decision, the 9th Circuit Court of Appeals upheld the ruling.

In Georgia, Thrash has allowed virtually the same scenario to unfold as Mexican lawyers filed a brief in Georgia Latino Alliance for Human Rights, et al. v. Deal, claiming the Georgia law could “adversely affect the fundamental civil rights of Mexican nationals living or visiting Georgia.”

Their brief literally spelled out their involvement is in direct conflict with the 11th Amendment. The Mexican lawyers laid plain that they are representing foreign nationals who currently may not even be in the state of Georgia, or the United States.

In Utah, Waddoups has allowed perhaps the most obvious violation of the Constitution by permitting Mexico, and nearly a dozen other Latin American countries, to file their own lawsuit, Mexico, et al. v. Utah, challenging HB497.

Waddoups issued an injunction 15 hours after the law went into effect, restraining its implementation, so that the parties to the lawsuit may have time to prepare. They are scheduled to return to court July 14.

It is true, there are innumerable concepts and philosophies, rulings and precedents that must be navigated to arrive at a sound legal determination. But it is equally true that there are a certain few principles that stand above all others to serve as the foundation for the entire American legal system.

I believe one of these principles is called into question here: the defendant shall enjoy the right to require that the complaining party shall adhere to every strict measure of law before a judge should allow or consider a suit, whether it be interpretation of law or application of equity.

A federal judge not only possesses the authority, but also the responsibility, to dismiss a suit, without determining the merit of its argument, if the suit itself violates constitutional limitations.

Obvious enough that a guy who didn’t go to college can see it as plainly as the West Texas noonday sun, there is a simple conclusion to be drawn here — the Constitution of the United States of America is being dishonored by the one entity created to ensure that never happens.

© by Ken Barton.  Published on IPR with the permission of the original author.Ken Barton is a co-founder of the San Angelo Tea Party and vice chairman of the Libertarian Party of Tom Green County.  Contact him at ken@kenservative.com.

36 thoughts on “KEN BARTON: Immigration, jurisprudence and the 11th Amendment

  1. Thomas L. Knapp

    Sounds like the Utah case is a clear violation of the 11th Amendment. The others, not even close — allowing someone to file a brief in a case does not make them the plaintiff in the case.

  2. Steven Wilson

    Our social contract is limited to America. I believe extending to people whom one day might deal with the courts is impossible.

    Thought police is one thing, but imaginary citizens is another. Once the person is deemed illegal per placement, a criminal has rights limited to the reference wherein they were deemed a criminal.

    To say that one day someone might come here illegally and still want protection is not a slippery slope, it is a mudslide.

  3. Thomas L. Knapp

    Steven,

    There’s no constitutional power for the federal government to regulate immigration in any way, so all federal immigration regulations are void — fraudulent impositions under color of law.

    Existing/current state immigration regulations are all based in and referent to those void federal regulations, which in turn makes the state regulations defective.

    So, it is impossible for someone to come here illegally. “Illegal immigrant” is an oxymoron with no basis in American law.

  4. Steven Wilson

    @3TK

    I understand the language game, but my point was more of a philosophical application mode.

    Under the rules of any given social contract, the rightist must outline ALL activities to some form of jurisdiction. There can be no right field wherein the contract is not applied.

    Under the social contract at it’s basic format, there is only two known states of function. You are either legal or illegal in your action. If their is a shade of gray, the courts must assign jurisdiction. But the concept of legal or illegal is innate.

    The philosophy of a contract requires complete description.

    The naming device “immigrant” applies to all non-indians. But the social contract identifies rules of legality based on perspective.

    Illegal immigrant is based on the perspective of the “legal resident” called such for being born here or having spent enough time here and taken an exam. Being married to an existing citizen is also viable. Work study through schools or employers is also legal. But all of these positions of activity are outlined in the contract.

    The “almost legal” citizen is a naming device based on the shades of gray, which cannot exist if a social contract is to remain a contract.

  5. hf

    TK – the theory (produced by the USSC, for whatever it’s worth) is that the 14th Amendment superseded the 11th when the rights guaranteed in the 14th are involved. That’s why “due process of law” usually gets mentioned in these lawsuits.

  6. newswatcher

    @3 – The Congress has the power to punish offenses against the Law of Nations including illegal migration under Article 1, Section 8. This power was restricted under Article 1 Section 9 until the year 1808, but both Congress and the states have had co-equal power to bar migration for the past 203 years. Hope this helps.

  7. Neil Klaus

    @6 Incorrect. Tom Knapp explained the error you are making in constitutional interpretation before.

  8. Ken Barton

    @Thomas L. Knapp (3) – “There’s no constitutional power for the federal government to regulate immigration in any way”…?

    Please explain Article I, Section 8, Paragraph 4 (under the enumerated powers) “To establish a uniform rule for naturalization”.

  9. Ken Barton

    @ Thomas L Knapp (1)

    “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” Rule 37(1), Rules of the Supreme Court of the U.S.

    If the amicus brief brings “valuable information” to the court’s attention, and the information is regarding how the ruling could affect an entirely separate group from the plantiff, then it is beyond reasonable to expect a federal jusde to determine if that group would be allowed to file the suit themselves. Which in this case, they would not. Therefore, the brief can not be construed as to serve the first stipulation of the SCOTUS rule, and, subsequently, should be looked upon unfavorably.

    Quite simply, to err on the side of assertive constitutionality, Bolton and Thrash should have disallowed the briefs from lawyers representing foreign nationals based on the fact that the Supreme Court, by its own rule, should not allow them to be considered.

  10. Thomas L. Knapp

    Ken @ 8,

    What’s there to explain? Immigration is movement across borders. Naturalization is the process of becoming a citizen. The two can be related, but they’re nothing like the same thing.

    newswatcher @ 6,

    The record is clear: The matter of a federal power to regulate immigration was explicitly debated, explicitly rejected, and understood by the Constitution’s framers and subsequent Congresses not to exist until such time as said power was invented by SCOTUS. That’s an irrefutable historical fact. Trying to wave a magic wand and change the past doesn’t “help.”

  11. Thomas L. Knapp

    Ken @9,

    There’s a big difference between “a rule of the Supreme Court” and the 11th Amendment. It is the latter which you’ve claimed has been violated.

  12. Ken Barton

    @Knapp 10,

    Article I allows for the federal government to create rules to govern the process of naturalization, of which, logically, immigration is one of two key components . You are either born here or you come here. Without accomplishing one of those two feats, there is no subject of naturalization to discuss.

    Do you believe that the Founding Fathers intended ArtI, Sec8, P4 solely to instruct the federal governement to decide what citizenship status they should bestow upon a newborn? I doubt it. One does not need be a rocket surgeon to glean their intent was to address those who would come to this country by way of travel, vice birth, and resultantly imparted upon Congress the power to make these determinations.

  13. Ken Barton

    @ Knapp 11

    SCOTUS rules exist to provide clarification to themselves and lower courts when confronted with ambiguous matters of constitutional law. Therefore, this rule in particular could be asserted to clarify how the 11th Amendment can be applied to deny the foreign nationals the right to file amicus briefs (aka participating) in the paricular suit, or require the federal judge to remand the matter to state court.

  14. Thomas L. Knapp

    Ken @ 10,

    Your interpretation of the naturalization power strikes me as very much like current SCOTUS interpretations of the Interstate Commerce Clause, under which the manufacture and sale of something entirely in one state falls under federal regulation because it might “affect” interstate commerce.

    The fact remains that during the framing and ratification debates, the issue was addressed. The power in question was considered, and it was rejected. That’s what happened. No amount of wishing otherwise will change history.

  15. NewFederalist

    #12- “One does not need to be a rocket surgeon…”

    Nor a brain scientist either! 😉

  16. Ken Barton

    @ Knapp 14

    The 14th Amendment was duly ratified at least a half a century after the debates to which you refer and it clearly recognizes the difference between a person who is here legally and one who is not.

    To wit, “all persons born or naturalized (the authority to apply granted by A1S8P4) and subject to the jurisdiction” – if the authors of the 14th had intended for all persons present in the state to be considered citizens there would be no need to utilize the term “naturalized”. They simply would have said all persons residing in a state are subject to the laws and protections of the United States and the state in which they reside.

    But they didn’t. They used language which implies anyone coming to this country after its legal formation must adhere to a set of rules established to control this activity.

    Because the 14th lists who is entitled to constitutional protection, the acceptance of your argument is that anyone who is here who wasn’t born here or naturalized is not afforded the rights and protection of the Constitution. Is that your contention?

  17. Ken Barton

    ***NOTE PLEASE ONE AND ALL***

    Contrary to the brief bio about me at the beginning of this, I am not the Chairman of the LPTGC, Barbara Pratt is. I am the Vice Chair. The is correctly noted in the 2nd bio appearing at the end of my article,

    Thanks

  18. Thomas L. Knapp

    Ken,

    You’re not making any sense here.

    Even if the 14th Amendment excludes non-naturalized immigrants from certain constitutional protections (which it doesn’t, necessarily — including Group X in something does not inherently exclude Group Y), it doesn’t follow from that that a new, but unstated federal power is magically created.

    If you’re saying that immigrants are not subject to the jurisdiction of the United States, that solves the problem even more neatly — if they’re not subject to US jurisdiction, then US laws, including US immigration laws, don’t apply to them.

  19. newswatcher

    @10 This…: The matter of a federal power to regulate immigration was explicitly debated, explicitly rejected, and understood by the Constitution’s framers and subsequent Congresses not to exist until such time as said power was invented by SCOTUS. That’s an irrefutable historical fact. Trying to wave a magic wand and change the past doesn’t “help.”

    … is simply a lie, if it isn’t just massive ignorance. The Alien Acts passed by Congress and signed by John Adams were migration bills, and they were largely opposed because it was not in yet in fact 1808. This is undisputed historical fact, which makes your rant @10 incorrect (and of course a lie if you have ever been apprised before of this information).

    @18 — if they’re not subject to US jurisdiction, then US laws, including US immigration laws, don’t apply to them.

    More stunning ignorance here. A foreign national is under the jurisdiction of their own home country until such time they have been granted permanent residency on a path to citizenship. Persons not under the U.S.’ jurisdiction may be deported for being illegally present in the US. But they are not US nationals and/or residents under the political jurisdiction of the US.

    E.g., if you go on a child-sex tour of Thailand, you are subject to prosecution by the US if you are a US citizen or resident since you are subject to US jurisdiction. If you are a Mexican who is illegally present in the US, and you leave and go to Thailand on the same tour, you are not subject to US prosecution b/c you are not under the jurisdiction of the US.

    That is the meaning of jurisdiction , evident today in such statutes and evident during the debate over the 14th Amendment if you just go over the Congressional record.

    Now that you have been corrected, you will certainly stop spreading such abominably false information, unless of course your goal is lies and disinformation and the destruction of America rather than an honest search for truth.

    Hope this helps.

  20. Ken Barton

    Tom,

    Yeah. I am the one not making any sense.

    The power was not “magically” created. It was infered in A1S8P4. Debates or not. As it relates to this subject, immigration is an inseparable part of naturalization and it is illogical to think otherwise. Naturalization cannot, by natural law, occur without immigration.

    The fact of the matter is we do not need the Constitution to afford us the right to control immigration into our country. It is an inherent right of man to own property. I own my home and therefore am entitled to regulate who can come in and who can not. The United States of America is a physical piece of property owned by the citizens of this country. We have an inherent right to control our borders.

    Your flawed point of view coincidentally and simultaneously denies the validity of the borders themselves and yet relies on their validity to offer you definition of immigration. It is all starting to sound a little oxymoronic to me.

  21. Thomas L. Knapp

    Ken,

    If you think that you have “an inherent right” to control the movement of people over imaginary lines drawn on the ground by your preferred street gang, feel free to believe that.

    That belief, I must concede, is probably no stranger than belief in transubstantiation of the host or that the earth is controlled by an alien reptilian race of whom Queen Elizabeth II and George HW Bush are members.

    But no, said “right” is not codified in your preferred street gang’s charter, and in point of fact the drafters of that charter considered and explicitly rejected including it.

  22. Robert Capozzi

    20 kb: Naturalization cannot, by natural law, occur without immigration.

    me: I’m not quite an “open borders” type, but this sentence doesn’t begin to work, IMO. “Natural law” is a catchall that some use, but in the end, it’s an opinion, not a “law.” And while it’s true that naturalization can’t happen w/o immigration, immigration CAN and DOES happen without naturalization.

  23. Ken Barton

    Tom,

    You just keep adhereing to the arcane Libertarian-of-yesteryear philosophy of a border free world. Nevermind that at every point in the history of man has he sought to establish a border to define what is his and what is not.

    It was happening 10,000 years before the Constitution was conceived and it will continue 10,000 years after it has been destroyed by the people it was designed to serve.

    And FYI, Your employment of polysyllabic rhetoric does nothing to further your inaccurate point of view.

  24. Ken Barton

    @RC 22,

    “Natural law” is just a term – feel free to substitute anything else which basically inferes logic.

    I agree wholeheartedly that immigration occurs without natualization. I simply assert that we, and every other nation on eart for that matter, have the right to govern it.

    As I tried to explain to Tom, you can not have immigration without recognized borders. Otherwise you would just have migration. The definition of word “immigration”, and therefore the existence of it as an idea, is completely dependent on the recogniztion of established borders.

  25. Robert Capozzi

    25 kb, yes, if we have borders (and we do), it seems reasonable to maintain those borders for a reason. I’d submit to maintain domestic tranquility. If the collective will of those who enforce those borders believe that undocumented immigration is a “problem,” then reasonable steps to police those borders and the territory within them seems perfectly appropriate to me.

    From what I can tell, most think undocumented immigration IS a problem, although there is a range of thought on how big a problem it is, and why. There is also a range of thought on what to do to solve the problem.

    I agree it’s a problem, but in the grand scheme of things, it seems like one for lower down on the priority list. I think the best solution to this (small) problem is to increase immigration quotas. I’m open to reasonable policing of undocumented immigration, too.

    I don’t think nations have rights, however. Nations are contrivances to facilitate domestic tranquility. Nations don’t do a great job of it, but then neither do stateless territories, rare as they are.

  26. Rev. Alberto Medvedev

    I, the Reverend Alberto Medvedev would like to know how future Vice-President Angela Lansbury feels about this issue?

  27. newswatcher

    @21 –re : “in point of fact the drafters of that charter considered and explicitly rejected including it.

    This is a lie by Mr. Knapp. Note no cite is provided.

    Congress has power to punish offenses against the law of nations per Article 1 Section 8, as explicitly included.

    As to contemporary consideration, it was indeed spelled out a few times. But educated people of that time knew what things like “law of nations” and “migration” meant, whereas the ignorant Knapp apparently doesn’t (or pretends not to).

    Antifederalist No. 44: “Congress may, by imposing a duty on foreigners coming into the country, check the progress of its population. And after a few years they may prohibit altogether, not only the emigration of foreigners into our country, but also that of our own citizens to any other country. ”

    Future SCOTUS Justice Iredell to North Carolina ratifying convention: “The committee will observe the distinction between the two words migration and importation. The first part of the clause will extend to persons who come into this country as free people, or are brought as slaves. But the last part extends to slaves only. The word migration refers to free persons; but the word importation refers to slaves, because free people cannot be said to be imported.”

    Your hatred of the Constitution is no reason to lie about it. Be honest with your hatred of the Constitution when you argue for its destruction.

  28. Jinn N. Jooz

    The fact of the matter is we do not need the Constitution to afford us the right to control immigration into our country. It is an inherent right of man to own property. I own my home and therefore am entitled to regulate who can come in and who can not. The United States of America is a physical piece of property owned by the citizens of this country. We have an inherent right to control our borders.

    This is very disturbing and illogical from an alleged libertarian and party officer.

    There is no collective property ownership of the entire territory of the US, including all private property therein, by the armed gang which purports to be the US government, that can be justified under any legitimate principle.

    If we were to grant the US government has some such collective right, what other rights of ownership can it legitimately exercise? Can it charge all of us rent for living on its property? Tell anyone, including those born here or naturalized, to leave at any time? Eject anyone from any portion of its property (IE their own homes, businesses etc) any time, with or without reason? Set standards for dress, speech, etc., as any legitimate property owner can on his or her own property for tenants or guests?

    Where do the alleged property rights of this collective entity end? Where do they come from? Did it mix its labor with the land? What labor does it legitimately lay claim to?

  29. Jinn N. Jooz

    I agree wholeheartedly that immigration occurs without natualization. I simply assert that we, and every other nation on eart for that matter, have the right to govern it.

    Simply assert…based on what exactly? Divine right of kings? social contract theory?

    As I tried to explain to Tom, you can not have immigration without recognized borders. Otherwise you would just have migration.

    True, migration is a better term than “immigration,” which is technically inaccurate but may sometimes be used for the sake of easier communication since it is used by most people.

    The definition of word “immigration”, and therefore the existence of it as an idea, is completely dependent on the recogniztion of established borders.

    Even if you grant some imagined legitimacy to government borders, border enforcement does not necessarily follow. Cities, counties, states, etc all have recognized borders with no or practically no border enforcement against migration or travel.

    For most of the history of the US, until very recently, the borders with Canada and Mexico were “open”: people could cross, for as short or long a time as they wished, any time, without being stopped or questioned. This only changed with our illegitimate “wars” on drugs (in the case of Mexico) and terror (in the case of Canada).

  30. Jinn N. Jooz

    You just keep adhereing to the arcane Libertarian-of-yesteryear philosophy of a border free world.

    When and why did libertarianism alter or abandon its long-standing principles, as your turn of phrase implies?

    Nevermind that at every point in the history of man has he sought to establish a border to define what is his and what is not.

    Slavery and absolute dictatorship (usually hereditary) were pretty universal throughout human history, too.


    It was happening 10,000 years before the Constitution was conceived and it will continue 10,000 years after it has been destroyed by the people it was designed to serve.

    How can you possibly begin to know what will happen in 10,000 years?

  31. Jinn N. Jooz

    immigration is an inseparable part of naturalization and it is illogical to think otherwise. Naturalization cannot, by natural law, occur without immigration.

    Migration, however, can and does happen without naturalization all the time.

  32. Thomas L. Knapp

    Newswatcher @ 28,

    Thank you for the supporting cite (it was the Anti-Federalists who opposed the Constitution, in part because it included no federal power to regulate immigration — see the writings of Agrippa, a/k/a John Winthrop — and the Federalists, who drafted and supported the Constitution, who opposed such a power).

  33. Herr O'Dawg

    The US survived for over 100 years without any immigration limits. Then from the 1880s to the 1920s it limited Chinese immigration but Europeans came in in unlimited numbers, although they were checked for diseases.

    Mexican immigration was not limited until the Nixon years, although most Mexicans only came in seasonally and went back home every year until the border controls were put up.

    The Canadian border remained largely open until after 9/11.

    Reagan gave illegal immigrants amnesty in the 1980s, and border controls – while they have inconvenienced millions of people and killed thousands trying to evade them – have never succeeded in preventing millions of people from going where the jobs are, or for that matter to keep drugs and guns from crossing borders to find willing buyers.

    There is little reason to believe that they will ever work.

    If they did work, there is little reason that they would do anything but damage to the economy.

  34. Ken Barton

    @Jinn N. Jooz

    The last sentence of section 3.4 of the LP National Party Platform, and I quote, “However, we support control over the entry into our country of foreign nationals who pose a credible threat to security, health or property.”

    A. You can’t control “the bad guys” without examing everyone.

    B. Southern border immigration is causing damage to private and public property.

    C. As a result of similar physical characteristics, middle eastern jihadists are able to blend in with the typical souther border immigrants. And they are intent on threatening the safety and security of our nation.

    You can exist in your little Peter Pan Pixie Dust imaginary world all you want. You, and your buddy Knapp, can spend ALL your time spewing forth deluded principles based on imaginary assertions about human nature. God bless America, you are free to do that. It doesn’t make you correct, just because you WANT the world to be a utopianist never never land.

    Furthermore, it is deluded rebukers of reality, such as yourself, who are responsible for the LP not making more of an impact on the direction of our country. It is people like you – who refuse to acknowledge that our governence must reflect a realistic view of the human animal and the realities of the world in which he exists, not just the Valhalla you are trying to create – who diminish the the credibility and, resultantly, the efficacy of the LP.

    It is people like me who are going to change that.

  35. Ken Barton

    @Herr O’Dawg,

    It is indisputable that the expense incurred by the states and the American people is greater that the positive economic impact of illegal immigrants.

    It is also indisptable that the GNP of several countries south of the U.S. is heavily reliant on the import of funds generated by illegal immigrants working in the U.S. This is dollars leaving our economy. FYI, that’s not good for us.

Leave a Reply

Your email address will not be published.