The United States Congress and the Obama administration should base U.S. border security policy on the subsidiarity-based framework implemented by Nehemiah four centuries before Christ.
The need for a 21st Century subsidiarity-based framework was apparent in last Wednesday’s hearing of the House Subcommittee on Border and Maritime Security titled, “Measuring Outcomes to Understand the State of Border Security.”
The bottom line of this hearing, according to published reports, appears to be that most leaders in Congress and in the administration don’t “have a clue.” (See Stephen Dinan, “Border security still difficult to measure: Testimony imperils immigration bill,” The Washington Times, p. A1, March 21, 2013; Byron York, “Is border secure? Administration doesn’t have a clue,” Washington Examiner, March 22, 2013).
The principle of subsidiarity espouses that governmental decisions should be made at the level where they are felt most. This ancient principle is better known in the United States than federalism, and is codified in the final article of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (U.S. Const., Amend. X).
The Supreme Court recently reaffirmed our liberty-enhancing version of subsidiarity when it struck down as unconstitutional the State Medicaid Mandate portion of the Affordable Care Act (aka Obamacare).
The chief justice explained why the State Medicaid Mandate is unconstitutional: “We have repeatedly characterized . . . spending clause legislation as much in the nature of a contract. The legitimacy of Congress’s exercise of the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of the contract.
"Respecting this limitation is critical to ensuring that spending clause legislation does not undermine the status of the states as independent sovereigns in our federal system. That system rests on what might at first seem a counterintuitive insight, that freedom is enhanced by the creation of two governments, not one” (internal quotes and citations omitted).
Even as Congress and the current administration appear incapable (or unwilling) to solve our southern border threats, one of the underlying assumptions of any solution to those threats is recorded in the Old Testament Book of Nehemiah, and is also apparent from current observations of border-state property owners and officials who have to deal on a day-to-day basis with those threats.
Four-hundred years before Christ, after the Persian king had released the Israelites from their exile in Babylon and while Nehemiah, governor of Judah, was rebuilding the wall around Jerusalem, Nehemiah “stationed guards down below, behind the wall, near the exposed points, assigning them by family groups with their swords, spears, and bows,” admonishing the guards to, “fight for your kindred, your sons and daughters, your wives and your homes.” (Nehemiah 4:7-8).
Nehemiah also directed that half of the wall rebuilding workforce be “armed with spears, bucklers, bows, and breastplates,” standing “guard behind the whole house of Judah as they rebuilt the wall. The load carriers, too, were armed; each worked with one hand and held a weapon with the other. Every builder, while working, had a sword tied at his side.” (Nehemiah 4:10-11).
In order to be ready for any attack, Nehemiah directed that a trumpeter remain at his side, and instructed not only his noblemen and magistrates, but “the rest of the people” that, “Our work is scattered and extensive, and we are widely separated from one another along the wall; wherever you hear the trumpet sound, join us there; our God will fight with us.” (Nehemiah 4:12-14).
At the same time, Nehemiah “told the people to spend the nights inside Jerusalem, each with an attendant, so that they might serve as a guard by night and a working force by day.” (Nehemiah 4:16). Nehemiah thus established a cadre of 24/7 Wall Security Minutemen from the very people whose day-to-day livelihood depended upon that security.
Even after the wall around Jerusalem had been rebuilt, Nehemiah empowered those most threatened by security breaches to deal with threats: “Now that the wall had been rebuilt, I had the doors set up, and the gatekeepers, the singers, and the Levites were put in charge of them. . . . I said to them: ‘The gates of Jerusalem are not to be opened until the sun is hot, and while the sun is still shining they shall shut and bar the doors. Appoint as sentinels the inhabitants of Jerusalem, some at their watch posts, and others in front of their own houses’.” (Nehemiah 7:1-3).
For more recent examples, as reported in The Washington Times after last Wednesday’s House hearing, “Rep. Ron Barber, Arizona Democrat, urged the Border Patrol to get the input of ranchers and townspeople along the border before it finalizes its new border security yardstick . . . ‘When I talk to ranchers, for example, and they tell me that they are unsafe on their land and they can’t go to town without taking their children with them . . . then we are not secure, from their perspective,’ he said. ‘It’s a matter of where you are and what you’re facing’.”
Implementation of a subsidiarity-based solution to border security challenges need not await action by the federal government. Article I, Section 10, of the Constitution provides that, "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
Apropos this constitutional requirement of “such imminent danger as will not admit of delay,” the Texas agriculture commissioner, Todd Staples, just published a book in which he points out that, “Article 4, section 4 of the United States Constitution says that it is the federal government’s job to defend us from invasion. Whether you choose to categorize [border security] events as invasion or domestic violence, our land, our state — our country — is under assault . . . When these promises are broken, people die.” (“Broken Borders, Broken Promises,” p. 25 (2013)).
Like Nehemiah 25 centuries earlier, Commissioner Staples’ solution is a subsidiarity-based “vigilance” by those who are living and working on the border: “[I]f you don’t believe our farmers and ranchers, ask the family of Brian Terry, the border patrol agent killed in the line of duty with guns supplied by our own federal government . . . Ask the law enforcement officers fired on by drug cartel members while patrolling the Rio Grande . . . The danger is here for all who will see; the border is broken. And the federal government’s failure to act is resulting in broken promises that will span generational, social, and racial divides.” (“Broken Borders, Broken Promises,” p. 26).
When the federal government fails to fulfill its duty to protect each of the states “against invasion” (Art. IV, Sec. 4), State leaders should follow the subsidiarity-based example of Nehemiah, whenever their citizens are “in such imminent danger as will not admit of delay.” (Art. I, Sec. 10).
Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.
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