JUSTICE SCALIA’S VIEW OF IMMIGRATION IS WRONG

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The Supreme Court struck down three provisions of Arizona’s immigration law on the theory that they are “preempted,” the legal term for inconsistenty with federal immigration law.  All constitutional law students are taught that Article VI of the Constitution provides that federal law is “supreme” and thus trumps inconsistent state laws.  But Justice Scalia argues that there is no preemption problem here because the Constitution is silent about immigration (to the surprise of many who confuse immigration with “naturalization,” about which more below).  He asserts immigration had been subject to the exclusive jurisdiction of the states until the 1880’s, and his dissent not only argues that the three Arizona provisions are inconsistent with the federal immigration law but goes further- that the states, not Congress had made immigration law in the country until the 1880’s and that doubts about close cases of preemption should be decided in favor of the states.

Here is the relevant background.  It is undoubtedly true that in early America each state enacted its own immigration law regulating who could enter its territory.  (One must keep in mind the difference between immigration, the act of entering, and “naturalization,” the act of acquiring citizenship).  This was so because neither the Articles of Confederation nor the Constitution says anything about immigration.  (Art. I sec. 8 confers on Congress the power “To establish a[n] uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States…”).  So in an early case the Supreme Court allowed New York to impose restrictions on immigration through the port of New York City and make sea captains post surety bonds personally guaranteeing payment of costs to the the state if any of the immigrants they brought in became a public charge.  The Court stated: “New York, from her particular situation, is, perhaps, more than any other city in the Union, exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor.   It is the duty of the state to protect its citizens from this evil…”   Mayor of New York v. Miln, 36 U.S. 102, 29 (1837)(emphasis added).  There was no federal immigration law at the time.  And no less than Thomas Jefferson, a strict constructionist, believed the Constitution specifically left jurisdiction over aliens to “the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.”  Arizona v. U.S.,  567 S.Ct._, (2012) (Scalia, dissenting), quoting Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991).  In fact, Scalia states Congress did not enact an immigration law until 1862. (Presumably Jefferson would have argued it had no power to do so.)

Scalia contends, with much support in the scholarship on international law, that regulating immigration is “an inherent attribute of sovereignty.”  If this is so, then why did the framers not say so in the Constitution?  Adherents of originalism and textualism are usually unwilling to consider unenumerated rights.  So it is odd for Scalia, an advocate of plain language textualism, to rely on something that is not part of the text of the document.  But the Constitution also provides that any unenumerated power is “reserved to the States respectively, or to the people.”   U.S. Const. Amend. X.  So did the founders intend for the states to have power over immigration?  And if so, doesn’t that create a conflict with the Constitution’s Supremacy Clause (giving the federal government the right to overrule the states).  Scalia elides this conflict by conceding that the federal government also has the inherent power to control its borders.  So he would allow Arizona to enact any immigration law unless “it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.”  Arizona’a law did not do so.  It merely allowed the state to require immigrants to carry their identification cards at all times (which is consistent with federal law), prohibit illegal aliens from seeking employment (which federal law does not do, thus no conflict is created), or arrest someone without a warrant if the police officer has probable cause to believe the person is “removable” (deportable).  Again, he would uphold this latter provision because it is consistent with federal law, as relying on federal immigration law to determine who is “removable.”  He rejects the argument that it is pre-empted because it allows Arizona to be more aggressive in arresting deportable aliens that the federal government chooses to be.  Scalia maintains “Arizona is entitled to have its own ‘immigration policy’.. so long as it does not conflict with federal law.” (emphasis by Scalia).  No other member of the Court joined Scalia’s opinion.

I believe Scalia goes too far in his state’s rights argument.  At the time of the Miln decision (1837), Scalia’s view was certainly correct.  But by 1892, after the enactment of a federal immigration statute, the Supreme Court had changed its view.  Thus, as Scalia states, in 1892 the Court held, “It is an accepted maxim of international law, that every sovereign has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its domains…”  Nishimura Ekiu v. U.S., 142 U.S. 651, 659 (1892).  But the next sentence of that opinion states, “In the U.S. this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war.”  Id.  How this federal supremacy over immigration happened is not made clear in this or any other Supreme Court opinion.  Perhaps the enactment of a federal statute was taken to mean that Congress intended to oust the states of all of their power over the subject.  One would expect the Supreme Court to explain this radical departure from the original understanding.  Or, more likely, the question of state v. federal power over immigration was simply not at issue in the cases the Court decided since the late 1800’s.  I admit that the Scalia’s view of the early history and understanding is correct, but it has been a very long time since this state power over immigration was asserted.  And to gain any real traction with his colleagues and the public, Scalia should have tried to craft a dissenting opinion that built a bridge from 1837 to the present rather than expounding what seems like a radical view.

I’m disappointed that five justices sided with the Obama administration in holding three provisions of the Arizona law are “preempted” by federal immigration law.  There is no real conflict, as Scalia points out, merely a disagreement in priorities.  Arizona wants to enforce the federal law on the books; the Obama Justice Department wants “lax” enforcement.  That is not a “conflict” in the sense of one law trumping the other.  Justice Kennedy’s majority opinion assumes  that a difference over priorities in enforcement is a conflict, and also accepts that congressional refusal to prohibit illegal immigrants from seeking employment preempts the states from doing so.  If the states have any remaining power over immigration, it should be sufficient to fill in congressional gaps.

But the decision did not totally oust Arizona from enacting anything.  Eight justices allowed the state to detain suspected illegal immigrants without a warrant until DHS indicates whether it wants to arrest them.  The Obama DHS will likely have no interest in detaining most of them, but it is a start.  Perhaps the next President will actually enforce the Immigration laws.