The purse as a chain

The Department of Justice has issued an opinion, according to CNBC, requiring states to report undocumented immigrants to the Department of Homeland Security as a condition of receiving federal funds for the Temporary Assistance for Needy Families and Supplemental Security Income programs. Refuse the condition, lose the money. The mechanism is familiar; the danger is no less real for its familiarity.

I wrote in the Kentucky Resolutions — and I hold to the principle today — that the general government is the creature of the states, assembled in compact, and that it possesses only those powers expressly delegated to it. What is expressly delegated is a defined and limited arm; what is not delegated is reserved to the states and to the people. No creative reading of the spending clause ought to transform that reserved authority into a conditional franchise, revocable whenever the federal executive wishes to extend its reach into territory the Constitution never assigned it.

The instrument here is money — money the states have already come to depend upon for the relief of their poorest citizens. When a government offers a grant it knows cannot be refused without great suffering, and then attaches to that grant a political condition reaching into state law enforcement, it has not negotiated; it has coerced. The distinction between an incentive and a command evaporates entirely when the alternative to compliance is the penury of families who depend on those programs for subsistence. That is not federalism; it is tribute dressed in the language of cooperation.

I will speak plainly on the immigration question itself, since this column would be dishonest to avoid it: I hold no brief for lawlessness at the border, and no republic can long endure without some order at its edges. But the question before us today is not what the nation's immigration policy ought to be — that is properly a matter for deliberate legislation — it is how that policy is to be enforced, and by whose officers, and at whose direction. The DOJ opinion, as reported by CNBC, appears designed to conscript state agencies into federal enforcement work, converting governors and state administrators into subordinate agents of Washington. That conversion, however worthy the goal invoked to justify it, is precisely the kind of gravitational pull toward central power that the architecture of the Republic was designed to resist.

History — and here I speak as one who observed power in its many disguises — teaches a lesson so plain it ought to need no repetition: the federal arm that can strip a state of funding for declining to perform immigration reporting can, by the same logic, strip it for declining to perform any number of other tasks the executive of the day considers urgent. The precedent, not the particular application, is the danger. A republic that tolerates broad conditional-spending coercion in the name of border security will find that same coercion turned, in some future administration, toward ends it finds far less congenial. Liberty is not well served by principles adopted and abandoned as convenience demands.

The cure is not defiance for its own sake, nor is it capitulation. The cure is an educated citizenry that demands of its Congress a clear and bounded statute, debated openly, voted upon honestly, and confined to the powers the Constitution actually grants. Executives should not be permitted to accomplish through the grant what they cannot accomplish through law. The states should contest this opinion in every court that will hear them. And the press — which CNBC has here done its proper office in reporting — should continue to illuminate every link of the chain before the citizen grows too accustomed to wearing it.