The numbers “42” and “80” are well-known to those following the “immigration debate” this week.
The number 42 pertains to “Title 42” - the federal hot potato that Delphic Supreme Court Chief Justice John Roberts on December 19 decided to “block” the Biden admin from no longer enforcing.
To be more specific, it’s about Section 262 of Title 42 of the U.S. Code, which “prohibits entry into the United States when the Director for Disease Control believes ‘there is a serious danger to (sic) the introduction of [a communicable] disease into the United States.’” President Donald Trump invoked it in March of 2020 as a way to translate popular concerns over the COVID “pandemic spread” into purportedly tougher federal border security.
By contrast, Joe Biden’s recent doubletalk -- in which he extended the so-called “pandemic emergency” to give college loan holders even more time to avoid payments while he simultaneously claimed there was NOT a “pandemic emergency” that required stricter border enforcement – has inspired proportional controversy, and, as noted above, has led to the bizarre caricature of a sitting Chief Justice claiming the power to tell the Executive-in-Chief that, somehow, he MUST continue enforcing a federal statute.
It all makes one wonder how a nation with supposed “separation of powers” can see a judge telling the head of the Executive Branch that he MUST keep enforcing a statute, when said judge has no executive power and cannot force anything, whether people like it, or they do not.
And all of THAT has a powerful bearing on the other number: 80.
That is emblematic of $80 million – the amount that was spent laying end-to-end 900 shipping containers along portions of Arizona’s 370-mile border with Mexico.
As Olivia Land reports for the NY Post, that state-erected, makeshift “border wall” is coming down.
“According to court documents filed at the US District Court in Phoenix on Wednesday, Republican Gov. Doug Ducey has reached an agreement with the Biden administration to cease installing the containers in the Coronado National Forest.”
And, of course, that latter term presents ANOTHER red flag to those who bother caring about the “rules” in the U.S. Constitution: the fact that in the Constitution, there is no provision for “national forests.” The feds are allowed to run only three types of land: Washington D.C. (i.e., the “10-square-mile” region for the capital), military garrisons, and territories. Territories entering the union are not required to cede land to the feds, and, even if they could, there’s no provision in the Constitution allowing for the feds to “care for” said ceded tracts.
“The agreement also states that Arizona must remove the finished portions of the wall by Jan. 4 without damaging natural resources.”
Of course, anyone familiar with economics knows that the statement “natural resources” requires yet another pause… because “natural resources” is an amorphous term, left open to the arbitrary whim of the political entities. In reality, a “resource” is something to which individual human beings ascribe value, based on their own subjective determinations of whether it helps their lives. The only way to know this value is to take the power to define and price it out of the hands of politicians and put it into the market, where people are free to show their interests and priorities.
This decentralization, allowing for priority-revelation and pricing, also has a bearing on the Arizona border battle.
Governor Ducey’s retreat in the face of the Biden administration's lawsuit over the wall (which Ducey began constructing in early December) reflects either Ducey’s ignorance of the U.S. Constitution, or his fear that, should he actually operate by it, the feds will pounce on him with even more unconstitutional aggression.
Simply put, during a time of non-war, the Constitution grants the federal government absolutely no power over immigration or “national border enforcement.” As Biden reveals his antipathy for “border security,” some people within the “conservative-constitutionalist” wing of the GOP are beginning to recognize it.
Texas’s state constitution, approved in 1869, included an article establishing a “Bureau of Immigration” in it. If the people of Texas believed Congress had the power to control immigration, why would they bother creating their own Bureau of Immigration?
The answer is that Congress did not have such an enumerated power, and the only reason contemporary Americans fight over what the feds “should do” at the border is because of a corrupt 1875 Supreme Court ruling in the case of “Chy Lung v. Freeman” which was a challenge to a California statute imposing a charge on boat-owners who were facilitating ingress to Chinese women (seen as likely prostitutes by the politicians). With the ruling, the Justices simply made-up federal immigration control, saying, in part, this errant nonsense:
“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”
This upside-down ruling led to federal passage of the Page Law that same year, a statute that restricted lower-price Chinese immigrant labor, and established, from that point on, that the states would suffer the loss of their constitutionally granted power over immigration.
Which brings us back to Arizona, conservatism, and federalism within the current controversy. The debate over federalism and state powers is not over. Regardless of what Biden claims, regardless of politically-appointed judges, as long as honest people can cite the U.S. Constitution, they can point out the so-called “rules” when there is no declared War.
As many conservatives feel their blood boil over Biden’s border policies, they might start to see the wisdom in adhering to the Constitution when it comes to those borders. Because they are STATE borders, in a CONFEDERATED system, and the U.S. Constitution offers clear guidance during this period of intense federal malfeasance.