NO WE CAN'T

Socrates and I always meet for breakfast at a local café on Saturdays, and, over time, it has become a kind of private school for me. The subjects have been wide ranging, though lately national controversies have taken center stage. I will confess that I have suffered from a kind of authoritarian streak in that I have a tendency to support whoever enjoys governmental power at the time. I have historically been a guaranteed vote for incumbents. But Socrates has, over time, and with great patience on his part, urged me to view contemporary issues more critically. I am uncertain as to how successful he has been, but I can happily report that he has not yet tired of my company.  

There was a time when I thought I might best him in debate. But I have come to realize that is impossible for someone at my intellectual level. I still try, however, not with any expectation of victory, but for the experience of having Socrates point out the errors in my logic and in my appreciation of the facts. 

But I was surprised a couple of days ago when I brought up the matter of the mass deportations taking place, when Socrates challenged my belief, or, perhaps, my assumption, that the United States government had the power to deport illegal aliens. 

“Let me ask you this,” Socrates said. “Does the Constitution tell the federal government what it may not do, or what it may do?” 

“Both,” I replied, being confused by the question. 

“Let me put it this way,” Socrates responded. “Does the Constitution set forth the powers of the federal government?” 

“It does.” 

“But what would be the point of that if the federal government had any power that wasn’t prohibited to it?” 

“That’s a good point,” I said. “But the Constitution also specifically forbids the government from doing certain things; establishing a religion for example.” [1] 

“It does. But haven’t you ever had the experience of explaining something to somebody, but also clarifying what you don’t mean so as to avoid misunderstanding?” 

“I imagine I have, even though I can’t recall an instance of it at the moment.” 

“So imagine that the prohibition against establishing a religion wasn’t in the Constitution, and Congress decided to enact a law that prohibited any products made by Catholics to be shipped in interstate commerce. Couldn’t Congress make the claim that it had the power to do so due to its right to regulate commerce among the states?” 

“You’re right. The Commerce Clause has quite a reach as it turns out. But I think such a law would overwhelmingly be found offensive.” 

“It would be offensive to Catholics, anyway. But respect for the religion of others hasn’t always been as widely practiced as it is today. And even now it isn’t an attitude that is universal. If such a law was passed regarding Muslims, can you imagine the objections being somewhat muted in certain quarters?”

“I can.” 

“And, indeed, don’t we see efforts these days to require Catholic hospitals to perform abortions?” [2] 

“We do. But I think that pertains more to the constitutional guarantee of the free exercise of religion.” 

“You’re right. But my point is that religious freedom isn’t as widely respected as you might think.” 

“I can’t argue with that.” 

“And do you see my larger point that when the Constitution prohibits an action by the government that it is to clarify the boundaries of a power that the Constitution has given it?” 

“I do.” 

“That leads to the question: where does the Constitution authorize the federal government to regulate immigration, and deport someone on the sole ground of being a noncitizen?” 

To this I laughed. “Come on, Socrates. I know that the Supreme Court has upheld that governmental power.” 

“True. But where in the Constitution did it find that power?” 

I thought I had him here. “I specifically remember that it empowers Congress to “establish an uniform Rule of Naturalization….” 

“That’s naturalization, the means by which foreigners obtain citizenship. But what does that have to do with immigration?” 

“Isn’t it part and parcel of the same thing?” 

“Well, can there be, logically, immigration without naturalization?” 

“Yes, it happens all the time.” 

“And can there be naturalization without immigration?” 

“That never happens, does it?” 

“I don’t know. But could it conceivably happen if Congress allowed it?” 

“I guess so.”

“So, how can the two be the same thing, if one can exist without the other?” 

“Okay, so they’re not the same thing. But hasn’t the Supreme Court upheld the right of the federal government to regulate immigration?” 

“What are you referring to?” 

“All I know is that the Supreme Court has held that the power rests on the constitutional provision pertaining to naturalization.” [3] 

“But we just discussed that, didn’t we? Immigration and naturalization are two different things.” 

“That isn’t all. The Court has held that the federal government has an inherent power to control and conduct foreign relations.”

Socrates laughed. “Inherent power? What the hell does that mean? The Nazis believed they had an inherent power to put people in ovens. Did something come down from Mount Sinai explaining this concept that I missed?”

“Are you really going to say that the federal government has no authority to expel aliens?” 

“As a punishment for crime, certainly. But just because someone isn’t a citizen? I don’t see it.” 

“The power has to be somewhere.” 

“Why? I suppose the states retain the power if they want to use it.” 

“Then the right wing states would use the power and the left wing states less so.” 

“You’re probably right.” 

“Then the law would be different depending on what state you were in.” 

“That’s true of a lot of things.” 

I thought for a moment, and realized I had nothing left to say on the matter, except to warn, “You know, Socrates, you’re going to wind up in prison. And that’s if you’re lucky.”  

“Life’s an adventure,” Socrates said.

 

—Jack Quirk