Immigration law is primarily governed by federal statutes and regulations. Congress has tried to pass immigration reform measures, however, neither the House nor the Senate has been able to get anything passed. No state has the authority to enforce the borders, deny access to immigrants, or make rules about who may or may not remain in this country or in any state therein. Federal statutes governing illegal immigration cannot be enforced by states, either. State law enforcement authorities can arrest suspected illegal immigrants, however, they must immediately turn them over to federal authorities unless the suspected illegal alien has committed a violation of state law that the law enforcement personnel have the authority to enforce. Finally, federal statutes and regulations prohibit states from passing laws to control and/or limit access to certain benefits (public education, medical care, law enforcement protection, food stamps, WIC benefits, etc.).
Therefore, the illegal immigration problem in SC and across the nation continues to get more serious as more illegal aliens enter our states, and the federal government is not adequately addressing the problem.
S. 856 calls for a constitutional convention, but it limits the issues to those relating to illegal immigration and grants the convention the authority to amend the Constitution to give states more power to regulate illegal immigration within their borders, to regulate benefits as they see fit, and to arrest and deport suspected illegal immigrants out of the state.
The fear of some constitutional scholars is that once a constitutional convention is convened, it is unlimited in its scope and it could take up any issue and amend the Constitution. There are two protections in place in this situation that further ensure that the convention would not stray from immigration reform and take up other constitutional provisions that we would not want it to discuss.
First, the concurrent resolution (S. 856) states that the convention called must be limited to illegal immigration reform issues explicitly stated in the resolution. If the convention takes up other matters, then our vote for the convention – through language in the resolution itself – makes our original request for the convention void from the beginning. This void ab initio would theoretically remove SC as one of 2/3 of the states who called for the convention as if we never supported the call to convention in the first place. Second, even if the convention is held and it proposes amendments to the Constitution other than those specifically enumerated in our resolution, no amendment proposed by the convention can become law unless 3/4 of the states approve it. Approving substantial changes to the Constitution in areas other than illegal immigration reform is unlikely to pass 3/4 of all the states in the country.