Posted by Rhoda at 10:08 PM
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Scalia takes swipe at Obama immigration action
By JENNIFER EPSTEIN, politico.com
Supreme Court Justice Antonin Scalia suggested Monday that the Framers of the Constitution would have “rushed to the exits” if presented with the idea behind President Barack Obama’s recent decision not to enforce certain immigration laws.
Supreme Court Justice Antonin Scalia suggested Monday that the Framers of the Constitution would have “rushed to the exits” if presented with the idea behind President Barack Obama’s recent decision not to enforce certain immigration laws.
The Supreme Court’s decision to strike down most of the key provisions of Arizona’s SB 1070 immigration law “boggles the mind” in light of the Obama policy shift, Scalia added.
Speaking in dissent of most of the court’s rulings on Arizona’s immigration law, Scalia took a clear swipe in his remarks at the Obama administration’s new policy ending deportations of many young adults brought into the country illegally — which was not part of the Arizona case.
“The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws,” Scalia said. “Perhaps it is, though Arizona might not think so.”
Read Justice Scalia's Bench Statement Below
June 25, 2012
Justice Antonin Scalia Bench Statement No.11-182 Arizona v. United States
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For almost a century after the Constitution was ratified, there were
no federal immigration laws except one of the infamous Alien and
Sedition Acts that was discredited and allowed to expire. In that first
century all regulation of immigration was by the States, which excluded
various categories of would-be immigrants, including convicted criminals
and indigents. Indeed, many questioned whether the federal government
had any power to control immigration--that was Jefferson's and Madison's
objection to the Alien Act. The States' power to control immigration,
however, has always been accepted, and is indeed reflected in some
provisions of the Constitution. The provision that "[the Citizens of
each State shall be entitled to all Privileges and Immunities of
Citizens in the several States" was a revision of the provision in the
Articles of Confederation which gave those privileges and immunities
to"inhabitants" of each State. ft was revised because giving that
protection to mere"inhabitants" would allow the immigration policies of
one State to be imposed on the others.
Even that revision was not thought to be enough, because the States
were not willing to have their immigration policies determined by the
citizenship requirements of other States. Hence the Naturalization
Clause of the Constitution, which enables the federal government to
control who can be a citizen.
Of course the federal power to control immigration was ultimately
accepted, and rightly so. But where does that power come from? Jefferson
and Madison were
correctthat it is nowhere to be found in the Constitution's enumeration of federal powers.
The federal power over immigration cannot plausibly derive from the
Naturalization Clause. Not only does the power to confer citizenship
have nothing to do with the power to exclude immigrants, but, as I have
described, the Naturalization Clause was a vindication of state rather
than federal power over immigration. Federal power over immigration
comes from the same source as state power over immigration: it is an
inherent attribute--perhaps the fundamental attribute-- of sovereignty.
The States, of course, are sovereign, the United States being a Union of
sovereign States.
To be sovereign is necessarily to possess the power
to exclude unwanted persons and things from the territory. That is why
the Constitution's prohibition of a State's imposing duties on imports
made an exception for "what may be absolutely necessary for executing
it's inspection Laws." Thus, this Court's cases have held that the
States retain an inherent power to exclude. That power can be limited
only by the Constitution or by laws enacted pursuant to the
Constitution, The Constitution, as we have seen, does not limit the 3
States' power over immigration but to the contrary vindicates it. So the
question in this case is whether the laws of the United States forbid
what Arizona has done. Our cases have held, with regard to claimed
federal abridgment by law of another inherent sovereign power of the
States--their sovereign immunity from suit--that the abridgement must be
"unequivocally expressed." The same requirement must apply here; and
there is no unequivocal congressional prohibition of what Arizona has
done.
It is not enough to say that the federal immigration laws
implicitly "occupy the field." No federal law says that the States
cannot have their own immigration law. Of course the Supremacy Clause
establishes that federal immigration law is supreme, so that the States'
immigration laws cannot conflict with it--cannot admit those whom
federal law would exclude or exclude those whom federal law would admit
But that has not occurred here. Arizona has attached consequences under
state law to acts that are unlawful under federal law--illegal aliens'
presence in Arizona and their failure to maintain federal alien
registration. It is not at all unusual for state law to impose
additional penalties or attach additional consequences to acts that are
unlawful under federal law--state drug laws are a good example. That
does not conflict with federal law. In sum, Arizona is entitled to
impose additional penalties and consequences for violations of the
federal immigration laws, because it is enaiiled to have its own
immigration laws, As my opinion describes in more detail, however, most
of the provisions challenged here do not even impose additional
penalties or consequences for violation of federal immigration laws;
they merely apply stricter enforcement.
The federal government would have us believe (and the Court today
agrees) that even that is forbidden. The government's brief 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" But 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, Arizona asserts without contradiction and with supporting
citations the following: "[I]n the last decade federal enforcement
efforts have focused primarily on areas in California and Texas, leaving
Arizona's border to suffer from comparative neglect. The result has
been the funneling of an increasing tide of illegal border crossings
into Arizona, Indeed, over the past decade, over a third of the
Nation's illegal border crossings occurred in Arizona," 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?
5 But leave that aside. It has become clear that federal enforcement
priorities--in the sense of priorities based on the need to allocate so
called scarce enforcement resources--is not the problem here. After this
case was argued and while it was under consideration, the Secretary of
Homeland Security announced a program exempting from immigration
enforcement some 1 .4 million illegal immigrants. The husbanding of
scarce enforcement resources can hardly be the justification for this,
since those resources will be eaten up by the considerable
administrative cost of conducting the non enforcement program, which
will require as many as 1.4 million background checks and biennial
rulings on requests for dispensation. The President has said that the
new program is "the right thing to do" in light of Congress's failure to
pass the Administration's proposed revision of the immigration laws.
Perhaps it is, though Arizona may not think so. But to say, as the Court
does, that Arizona contradicts federal law by enforcing applications of
federal immigration law that the President declines to enforce boggles
the mind,
The Court's opinion paints what it considers a looming specter of
unutterable horror: "If ?3 of the Arizona statute were valid, every
State could give itself independent authority to prosecute federal
registration violations," That seems to me not so horrible and even less
looming. But there has come to pass, and is with us today, the specter
that Arizona and the States that support it predicted: A federal
government that does not want to enforce the
immigration laws as
written, and leaves the States' borders unprotected against immigrants
whom those laws exclude. So the issue is a stark one: 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? Imagine a
provision--perhaps inserted right after Art. I, ?8, ci. 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 from Independence Hall, As is often the case,
discussion of the dry legalities that are the proper object of our
attention suppresses the very human realities that gave rise to the
suit. 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 simply unwilling to do so, 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. For these reasons, I dissent.
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The Defining Characteristic of Sovereignty
Today's opinion deprives states of their right to exclude.
By Antonin Scalia
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.
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: