Letter to Schwarzenegger and Napolitano

I received the letter below from Mr. John MacMullin, which was sent to Governors Schwarzenegger (R-CA) and Napolitano (D-AZ), and to various members of the Arizona State legislature. Mr. MacMullin noted to me that he did not receive a reply from either governor, however, did receive some positive replies from Arizona State legislators. Mr. MacMullin practices law in Arizona and has been on the forefront of the repeal movement for a number of years.

Recently Arizona Governor Napolitano, a Democrat, gave her state of the state speech in which she declared that she would use the Arizona National Guard to control illegal immigration into the State of Arizona. The thrust of her speech, and her attitude, parallels that of Governor Schwarzenegger, a Republican, who has the same illegal immigration problem in California. Both Governors, many other elected officials and a growing percentage of the public believe that the federal government has all but abandoned its obligations under the U.S. Constitution to control illegal immigration from Mexico.

The illegal immigration issue, like all other federalism issues, has its origin in the passage of the 17th Amendment, which provided for the popular election of U.S. Senators. Originally, the federalism issues were well controlled. In the original design by the Framers of the U.S. Constitution, there was a selection method through the state legislatures' power to appoint (and remove) U.S. Senators. As such, the core of the federalism issues lies in the passage of the 17th Amendment, which abrogated the state legislatures' right to appoint U.S. Senators in favor of popular election of those officials. This amendment also created a fundamental structural problem, which, irrespective of the political party in office, or the laws in effect at any one time, will result in unchecked federal conduct in every area. To state the problem precisely, at the present time, there are no checks and balances available to the states over federal power or over Congress itself in any area.

The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The 17th amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.

The 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate and influence the exercise of federal power in all areas, including that of controlling illegal immigration. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return. This is the fundamental problem with the present structure and thus justifies the repeal of the 17th Amendment.

Let us assume that the 17th Amendment was repealed. In that scenario, the state legislatures would have the ability to force their respective U.S. Senators to address the immigration problem or risk being "fired". With that notion in mind, lets put the idea of repealing the 17th Amendment before every governor and state legislature in this country.

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