Scalia asks the right question in SB 1070 dissent

| June 26 2012
Christopher Cook

Yesterday morning, I asked the following:

 Why is it that the Supremacy Clause is so vital on the subject of immigration, but not nearly so much so on the subject of drugs? There are federal drug laws and state drug laws. These two divisions of government cooperate and harmonize on drug enforcement. Why does a state not get to have its own laws on illegal immigration? On the surface, one could reply that we are a single union, so immigration violations are the purview of the central government that heads that union. But are states not sovereign? If a state has a compelling interest to deal with drugs on its own, why does it not have an interest in securing its own sovereign borders?

Immigration law, generally speaking, is under federal jurisdiction because Article 1, section 8 of the Constitution gives Congress the power to “establish an uniform rule of naturalization.” Okay fine. But does that mean that states should be prevented from securing their own borders? Why is it that Congress’ role to “establish an uniform rule of naturalization” somehow precludes efforts by the states to help make that happen?

As it turns out, in his dissent, Justice Scalia asked a very similar question:

Scalia, by contrast, argued that the decision “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.”

Scalia added: “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 would exclude.”

I am sure some con-law expert will come by and tell me why it is, from a legal standpoint, that the Court did what it did. Fine. But it strikes me as interesting that no less a con-law expert than Justice Scalia is asking the same question about state sovereignty. When he notes that the majority’s ruling helps the federal government to deprive “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,” he is asking a question that goes to the very heart of our constitutional system. I am no con-law expert, but it sure seems to me that if the federal government can use the concept of preemption and the Supremacy Clause to state that immigration enforcement is its purview alone, and then it proceeds to shirk its duties in that regard, we have a serious problem. States have to be able protect their borders; that is a sine qua non of statehood and sovereignty. If the federal government says “We’re not protecting the borders, and you aren’t gonna either,” it represents a serious breakdown in our constitutional system.

In other words, the Supremacy Clause only works with the presumption that the federal government has the best interests of the states in mind. If the federal government sees the states, or certain states, as adversaries—as Obama clearly does—then the Supremacy Clause ceases to be a unifying constant and becomes a shackle.

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