Scalia's Dissent

Scalia issued a dissent so radical or, more accurately, reactionary (in the sense of wanting to turn back the clock) that not even Thomas was willing to follow him there.  If the majority shows a disturbing faith in the wisdom of the federal government, Scalia shows an equally disturbing faith in state sovereignty, ignoring what it has all too often meant in the real world.

For starters, Scalia denounces the entire opinion as an attack on Arizona’s sovereignty.  Excluding people is an essential attribute of sovereignty.  He makes some decidedly dubious constitutional interpretations.  The Articles of Confederation made the “inhabitants” of one state “citizens” of another, allowing a non-citizen inhabitant of one state to claim citizenship in another.  The Constitution limited this to citizens of one state being citizens of another.  The federal government was given sole authority over naturalization in order to keep one state from naturalizing people and forcing other states to accept them as citizens.  Scalia takes this to mean that giving the federal government sole authority over naturalization is meant to make it easier for states to exclude people.  That is a dubious argument.  The citizenship clause of the Constitution has the obvious effect of forbidding states from excluding people who are U.S. citizens.  The obvious reason for giving the federal government sole power of naturalization is because immigration and naturalization are so closely linked to foreign policy which is, of course, a sole federal prerogative.  Giving this power to the federal government does prevent one state from undercutting another’s laws by introducing a laxer immigration policy.  It also prevents one state from excluding others by introducing a narrower immigration policy.  Either way, state power is clearly limited.  The Constitution allows states to exclude unwanted products, which Scalia dubiously interprets as a power to exclude unwanted people.  He also somehow interprets the Constitution allowing a state to wage war if invaded or in imminent danger of invasion as a sign that it may exclude unwanted immigrants.  He then argues that in the early history of our country, states regularly excluded unwanted people (including free blacks).  Indeed, for much of our early history, states did a whole lot more to exclude people than the federal government.

 Above all else, Scalia emphasizes protection of state sovereignty.  If states cannot exclude, they are not sovereign.  At the same time, he admits that the federal power over immigration has substantially eroded their sovereignty.  But he wants to preserve any portions that remain.  He will admit that state laws must yield to federal law if they seek to exclude those who federal law would admit, or admit those who federal law would exclude.

His view on the power of Arizona police to check the immigration status of people they arrest does not materially differ from any of the other justices.  Unlike the others, however, he argues that Arizona is entitled to have its own immigration policy, one stricter than the federal policy, so long as there is no direct conflict.  The close relationship between immigration and foreign affairs does not impress him.  Arizona may not be able to force the federal government to deport certain people from the U.S., but it can deport them from Arizona.  He goes over all the provisions, arguing at length that the state, in defense of its sovereignty, may establish tougher enforcement penalties than the federal government, so long as there is no direct conflict.

He then first says that if the federal government does not have resources to rigorously enforce immigration laws, then it should welcome Arizona’s help.  Next he strongly denounces President Obama’s decision to exempt people under 30 who were illegally brought over as children.  Arizona, he says, should not be bound by the Executive’s refusal to enforce the law.  Finally, he asks, would the states have ratified the Constitution if they had known this decision would be made.   If that is to be the standard of constitutionality, I don’t see how modern society can be made workable.  One can imagine any number of things that go on today that no one in 1787 would have consented to.  Its decision issued the same day that states cannot limit the influence of big money in politics is a good place to start.  Fill in the blanks for yourself on other subsequent developments people in 1787 might have rejected, for good and for ill.