Scalia on Arizona et al v. United States
The United States is an indivisible “Union of sovereign States.” (Hinderlider v. La Plata River & Cherry Creek Ditch
Co., 304 U. S. 92, 104 -- 1938)
Today’s opinion, approving virtually all of the Ninth
Circuit’s injunction against enforcement of the four challenged provisions of
Arizona’s law, deprives States of what most would consider the defining
characteristic of sovereignty: the power to exclude from the sovereign’s
territory people who have no right to be there.
Neither the Constitution itself nor even any law passed
by Congress supports this result.
I dissent.
(*CLAP-CLAP-CLAP*)
As a sovereign, Arizona has the inherent power to exclude
persons from its territory, subject only to those limitations expressed in the
Constitution or constitutionally imposed by Congress.
That power to exclude has long been recognized as inherent
in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations
stated: “The sovereign may forbid the entrance of his territory either to
foreigners in general, or in particular cases, or to certain persons, or for
certain particular purposes, according as he may think it advantageous to the
state. There is nothing in all this, that does not flow from the rights of
domain and sovereignty: everyone is obliged to pay respect to the prohibition;
and whoever dares violate it, incurs the penalty decreed to render it
effectual.”
UNDERSTAND, FOLKS, THIS REALITY AS UNDERSTOOD BY OUR
FOUNDERS.
UNDERSTAND, FOLKS, OUR FOUNDERS - AND OUR CONSTITUTION
- ACKNOWLEDGED STATES AS SOVEREIGN WITHIN A FEDERAL UNION OF LIMITED POWERS.
YES... ONE OF THOSE POWERS BEING THE AUTHORITY OF THE FEDERAL CONGRESS TO MAKE
RULES "ESTABLISH(ING) AN UNIFORM RULE OF NATURALIZATION," BUT THEN
THAT'S THE WHOLE POINT HERE, ISN'T IT - CONGRESS *HAS* ESTABLISHED SUCH LAWS
AND THE EXECUTIVE BRANCH AND A MAJORITY OF MEMBERS OF THE SUPREME COURT OF THE
UNITED STATES HAVE OPTED TO BYPASS THESE LAWS WHILE ARIZONA WAS ATTEMPTING TO
SUPPORT THEM!
There is no doubt that “before the adoption of the
constitution of the United States” each State had the authority to “prevent itself
from being burdened by an influx of persons.” (Mayor of New York v. Miln, 11
Pet. 102, 132– 133 -- 1837) [T]he Constitution did not strip the States of that
authority.
AGAIN... THE CONSTITUTION DID NOT STRIP THE STATES OF
THAT AUTHORITY!
To the contrary, two of the Constitution’s provisions
were designed to enable the States to prevent “the intrusion of obnoxious
aliens through other States.”
FIRST SOME BACKGROUND...
The Articles of Confederation had provided that “the free
inhabitants of each of these States, paupers, vagabonds and fugitives from
justice excepted, shall be entitled to all privileges and immunities of free
citizens in the several States.” Articles of Confederation, Art. IV. This meant
that an unwelcome alien could obtain all the rights of a citizen of one State simply
by first becoming an inhabitant of another.
NOW... READ ON...
To remedy this, the Constitution’s Privileges and
Immunities Clause provided that “the Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the several States.”
READ ON...
But if one State had particularly lax citizenship
standards, it might still serve as a gateway for the entry of “obnoxious
aliens” into other States.
This problem was solved “by authorizing the general
government to establish a uniform rule of naturalization throughout the United
States.”
In other words, the naturalization power was given to
Congress not to abrogate States’ power to exclude those they did not want, but
to vindicate it.
YES...!!!
Two other provisions of the Constitution are an
acknowledgment of the States’ sovereign interest in protecting their borders.
Article I provides that “no State shall, without the
Consent of the Congress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing it’s inspection Laws.” This
assumed what everyone assumed: that the States could exclude from their
territory dangerous or unwholesome goods.
A later portion of the same section provides that “no
State shall, without the Consent of Congress, . . . engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.” This
limits the States’ sovereignty (in a way not relevant here) but leaves intact
their inherent power to protect their territory.
Notwithstanding “the myth of an era of unrestricted immigration”
in the first 100 years of the Republic, the States enacted numerous laws
restricting the immigration of certain classes of aliens, including convicted
criminals, indigents, persons with contagious diseases, and (in Southern
States) freed blacks. State laws not only provided for the removal of unwanted
immigrants but also imposed penalties on unlawfully present aliens and those
who aided their immigration. In fact, the controversy surrounding the Alien and
Sedition Acts involved a debate over whether, under the Constitution, the
States had exclusive authority to enact such immigration laws.
SCALIA GOES INTO MORE DETAIL, BUT YOU GET THE IDEA,
FOLKS.
One would conclude from the foregoing that after the adoption
of the Constitution there was some doubt about the power of the Federal
Government to control immigration, but no doubt about the power of the States
to do so. Since the founding era (though not immediately), doubt about the
Federal Government’s power has disappeared.
BUT UNFORTUNATELY, IN ITS PLACE, THERE'S ARISEN DOUBT
ABOUT THE STATES' POWERS. AS SCALIA SHOWS, THESE DOUBTS ARE UNFOUNDED AND HAVE
THUS LED TO THE ARIZONA DECISION'S ASSAULT UPON THE CONSTITUTION!
In light of the predominance of federal immigration restrictions
in modern times, it is easy to lose sight of the States’ traditional role in
regulating immigration — and to overlook their sovereign prerogative to do so.
I accept as a given that State regulation is excluded by the Constitution when
(1) it has been prohibited by a valid federal law, or
(2) it conflicts with federal regulation — when, for
example, it admits those whom federal regulation would exclude, or excludes
those whom federal regulation would admit.
BUT THAT'S NOT THE CASE WITH ARIZONA'S LAW! IT'S JUST
THE OPPOSITE...!!!
Possibility (1) need not be considered here: there is no federal
law prohibiting the States’ sovereign power to exclude (assuming federal authority
to enact such a law).
The mere existence of federal action in the immigration
area — and the so-called field preemption arising from that action, upon which
the Court’s opinion so heavily relies — cannot be regarded as such a
prohibition.
We are not talking here about a federal law prohibiting
the States from regulating bubble-gum advertising, or even the construction of
nuclear plants. We are talking about a federal law going to the core of state
sovereignty: the power to exclude.
Like elimination of the States’ other inherent sovereign
power, immunity from suit, elimination of the States’ sovereign power to
exclude requires that “Congress . . . unequivocally express its intent to
abrogate.” Implicit “field preemption” will not do.
THIS IS WHAT I'VE BEEN SAYING ALL ALONG!
Nor can federal power over illegal immigration be deemed
exclusive because of what the Court’s opinion solicitously calls “foreign
countries’ concerns about the status, safety, and security of their nationals
in the United States.”
The Constitution gives all those on our shores the
protections of the Bill of Rights — but just as those rights are not expanded
for foreign nationals because of their countries’ views (some countries, for
example, have recently discovered the death penalty to be barbaric), neither
are the fundamental sovereign powers of the States abridged to accommodate
foreign countries’ views.
YES!
KEEP READING - THE FOLLOWING IS A KEY POINT:
Even in its international relations, the Federal
Government must live with the inconvenient fact that it is a Union of
independent States, who have their own sovereign powers. This is not the first
time it has found that a nuisance and a bother in the conduct of foreign
policy. Four years ago, for example, the Government importuned us to interfere
with thoroughly constitutional state judicial procedures in the criminal trial
of foreign nationals because the international community, and even an opinion
of the International Court of Justice, disapproved them. (See Medellín v.
Texas, 552 U. S. 491 -- 2008) We rejected that request, as we should reject the
Executive’s invocation of foreign-affairs considerations here.
Though it may upset foreign powers — and even when the
Federal Government desperately wants to avoid upsetting foreign powers — the States
have the right to protect their borders against foreign nationals, just as they
have the right to execute foreign nationals for murder.
YES...!!!
What this case comes down to, then, is whether the
Arizona law conflicts with federal immigration law — whether it excludes those
whom federal law would admit, or admits those whom federal law would exclude.
It does not purport to do so.
It applies only to aliens who neither possess a privilege
to be present under federal law nor have been removed pursuant to the Federal
Government’s inherent authority.
(*NOD*)
Arizona is entitled to have “its own immigration policy” —
including a more rigorous enforcement policy — so long as that does not
conflict with federal law. The Court says, as though the point is utterly
dispositive, that “it is not a crime for a removable alien to remain present in
the United States.”
IN WHAT SENSE...? IF THE LAW IS BEING VIOLATED BY THE
ILLEGAL PRESENCE IN OUR COUNTRY OF THE ILLEGAL ALIEN...
(*SCATCHING MY HEAD*)
It is not a federal crime, to be sure.
AGAIN... I DON'T GET IT. WE'VE GONE OVER THIS BEFORE.
I'M SIMPLY NOT GETTING WHERE KENNEDY (OR APPARENTLY SCALIA) GETS THE NOTION
THAT BEING HERE ILLEGALLY ISN'T A FEDERAL CRIME WHEN IT'S THE FEDERAL
GOVERNMENT WHICH MADE BEING HERE ILLEGALLY... er... ILLEGAL?
But there is no reason Arizona cannot make it a state
crime for a removable alien (or any illegal alien, for that matter) to remain
present in Arizona.
OK. I SUPPOSE THAT MAKES THE ABOVE POINT MOOT... BUT I
STILL DON'T GET IT AND NONE OF MY LAWYER FRIENDS CAN EXPLAIN IT TO ME.
(*SHRUG*)
[Federal] statutory limitations upon the actions of
federal officers in enforcing the United States’ power to protect its borders
do not on their face apply to the actions of state officers in enforcing the
State’s power to protect its borders.
[U]nless and until [illegal] aliens have been given the
right to remain, Arizona is entitled to arrest them and at least bring them to
federal officials’ attention, which is all that §6 necessarily entails. In my view,
the State can go further than this, and punish them for their unlawful entry
and presence in Arizona.
It is beyond question that a State may make violation of
federal law a violation of state law as well. We have held that to be so even
when the interest protected is a distinctively federal interest...
The brief for the Government in this case asserted that
“the Executive Branch’s ability to exercise discretion and set priorities is
particularly important because of the need to allocate scarce enforcement
resources wisely.” Of course there is no reason why the Federal Executive’s
need to allocate its scarce enforcement resources should disable Arizona from
devoting its resources to illegal immigration in Arizona that in its view the
Federal Executive has given short shrift.
(*CLAP-CLAP-CLAP*)
Must Arizona’s ability to protect its borders yield to
the reality that Congress has provided inadequate funding for federal
enforcement — or, even worse, to the Executive’s unwise targeting of that
funding?
SURELY NOT! WHY THE VERY IDEA IS LAUGHABLE!
[T]o say, as the Court does, that Arizona contradicts
federal law by enforcing applications of the Immigration Act that the President
declines to enforce boggles the mind.
(*NOD*)
Are the sovereign States at the mercy of the Federal
Executive’s refusal to enforce the Nation’s immigration laws?
APPARENTLY SO - THANKS TO JUSTICES GINSBURG, BREYER,
SOTOMAYOR, KENNEDY, AND ROBERTS! YES... ROBERTS! I PREDICTED SUCH BEHAVIOR FROM
ROBERTS WHEN HE WAS NOMINATED. YES... ROBERTS MAY BE "TO THE RIGHT"
OF KENNEDY, BUT LIKE KENNEDY, ROBERTS HAS LITTLE RESPECT FOR THE FOUNDERS OR
OUR CONSTITUTION AS WRITTEN AND UNDERSTOOD AT THE TIME OF ITS WRITING AND
APPROVAL VIA THE DEMOCRATIC PROCESS.
Are the sovereign States at the mercy of the Federal
Executive’s refusal to enforce the Nation’s immigration laws? A good way of
answering that question is to ask: Would the States conceivably have entered
into the Union if the Constitution itself contained the Court’s holding?
[I]magine a provision — perhaps inserted right after Art.
I, §8, cl. 4, the Naturalization Clause — which included among the enumerated
powers of Congress “To establish Limitations upon Immigration that will be
exclusive and that will be enforced only to the extent the President deems
appropriate.” The delegates to the Grand Convention would have rushed to the
exits.
(*NOD*)
Arizona bears the brunt of the country’s illegal
immigration problem. Its citizens feel themselves under siege by large numbers
of illegal immigrants who invade their property, strain their social services,
and even place their lives in jeopardy. Federal officials have been unable to
remedy the problem, and indeed have recently shown that they are unwilling to
do so. Thousands of Arizona’s estimated 400,000 illegal immigrants — including
not just children but men and women under 30 — are now assured immunity from enforcement,
and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty — not in contradiction
of federal law, but in complete compliance with it.
The laws under challenge here do not extend or revise
federal immigration restrictions, but merely enforce those restrictions more
effectively.
If securing its territory in this fashion is not within
the power of Arizona, we should cease referring to it as a sovereign State.
I dissent.
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