First Impressions: "International Community" Trumps Federalism at Supreme Court
As I expected, Justice Kennedy's majority opinion in the Arizona immigration case is a shambles. The bottom line, which I will expand on below is that the majority found the law inconsistent with Congress's (non-existent) right to control what foreigners think of us.
Arizona v. US is a "pre-emption" case; that is, the issue is whether the state's immigration law (SB 1070) is trumped by federal law. So, the first question is: what is the federal law that is potentially inconsistent with the state law? The majority recognizes (as did the Obama administration) that SB 1070 isn't trumped by Congress's constitutional power to establish a "uniform rule of Naturalization." The Ariz. law does not change the rules of naturalization (who can enter the country and under what conditions can they stay); rather, it adds certain state penalties to what are already violations of federal law.
Thus, the majority relies not only on Congress's power over immigration, but on some mythical federal power over "the status of aliens" -- a power which, according to the majority, flows from the executive's power over foreign affairs. The federal executive branch must have exclusive control over the mechanisms for enforcing immigration law because of the "fundamental" requirement that foreign countries concerned about the "status, safety, and security of their nationals" must be able to deal with one government, not 50. Justice Kennedy cites the amicus brief filed by Argentina (I kid you not) for the proposition that the federal government must control the "perceptions" that aliens have of this country.
Even assuming that it is a worthwhile goal to give foreign governments the convenience of one-stop shopping and a more friendly "perception" of the US, these considerations must yield to the Constitution. As usual, the money quote is from Scalia's dissent:
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 . . . neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. 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.
By ignoring this "inconvenient fact," the majority casts aside the most basic aspect of state sovereignty: the right to control a state's borders. In the founding era, and for many decades thereafter, the operative assumption was that the states had the exclusive power to exclude undesirable aliens. Jefferson and Madison objected to President Adams' Alien Acts (part of the "Alien and Sedition Acts") on the grounds that the power to determine whether aliens are "dangerous" belonged to the states and had never been delegated to the federal government. In Mayor of New York v. Miln (1837), the Court upheld a New York statute that gave the City the power to turn away any passengers arriving in the Port of New York who the Mayor thought might become a burden on the City.
What we're seeing today is another example of the Court's tendency to interpret the Constitution in a way that the Justices imagine will be most congenial to foreign (mainly European) sensibilities. This approach has already done violence to federalism (e.g., through holdings that the president can invade states' rights via the treaty power); and of course has turned the Eighth Amendment into a mere appendage of the UN Charter.
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Comments:
Feb '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Perhaps all English-speaking countries should be required to have a single immigration law, so other countries won't have to exert themselves to learn a dozen different statutes.
Apr '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
What does this say about the coming ACA decision then? There is no issue on which Europeans think of Americans as more backward than on healthcare.
With the decision being written by Roberts (and scotusblog said it might be Roberts and Kennedy) I think we have almost certainly lost now. Nancy Pelosi will be proven correct, 6-3 to uphold Obamacare.
Edited on June 25, 2012 at 8:50pmAug '10
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Scary. Dangerous. Shocking. What about their oath to the Constitution? This speaks volumes about the content of their character.
May '10
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Adam Freedman:
By ignoring this "inconvenient fact," the majority casts aside the most basic aspect of state sovereignty: the right to control a state's borders.
And further consolidates power within the Executive branch.
Feb '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Capital punishment?
Feb '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Aaron Miller
Adam Freedman:
By ignoring this "inconvenient fact," the majority casts aside the most basic aspect of state sovereignty: the right to control a state's borders.
And further consolidates power within the Executive branch. · 2 minutes ago
It's almost like the same issue. Borders between states. Borders between countries. Borders between the Executive and the Legislative Branches of the government. Borders between states and the Federal Government.
The only borders these folks accept are between Church and State.
Dec '10
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
It gets worse. Obama has essentially announced an open borders policy in Arizona.
Sep '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
How are we/conservatives in Congress/people who believe in federalism/etc. going to combat this? Is there anything we can do? This news combined with Napolitano's "announcement" that the feds are no longer going to cooperate with Arizona immigration enforcement efforts has left me in despair.
May '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Israel Pickholtz
Aaron Miller
And further consolidates power within the Executive branch. · 2 minutes ago
It's almost like the same issue. Borders between states. Borders between countries. Borders between the Executive and the Legislative Branches of the government. Borders between states and the Federal Government.
The only borders these folks accept are between Church and State. · 14 minutes ago
Even those borders are being broken. The Administration is trying to tell the Catholic church what to believe. No?
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Nothing to be done while BHO is in the White House, but with a Republican president, the Napolitano memo could be revoked and federal immigration laws could be amended to expressly permit a state role in enforcement (to some extent the law already does, but obviously not enough).
Apr '12
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
You are suggesting that all who wish to engage in interstate travel, need to learn the various immigration rule intricacies of each state?
Feb '12
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
May I make it interesting by offering a Ricochet dissent?
It's appropriate in federalism that the federal government decide who is and who is not in this country illegally, and by extension what to do about people who are here in violation of the law. Congress has enacted any number of laws pertaining to immigration and to say it has created a comprehensive scheme is almost an understatement. Arizona's beef is with a series of administrations that don't enforce the laws to Arizona's liking.
Yet Congress hasn't stepped in to force the executive's hand, either. This ruling doesn't consolidate power into the executive, but into the federal government. Were Congress to get aggressive, it could radically change matters.
Moreover, while I'm sure one can be in this country illegally, I'm not so sure one can be in a State illegally. That may be lawyer speak, but certainly the various States can't ban certain people from entering its borders with other States. Likewise, the federal government gets to choose who gets into the U.S. via international borders and ports.
Don't be too hard on Roberts/Kennedy for this one.
Dec '10
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
Shane McGuire: Moreover, while I'm sure one can be in this country illegally, I'm not so sure one can be in a State illegally. That may be lawyer speak, but certainly the various States can't ban certain people from entering its borders with other States. Likewise, the federal government gets to choose who gets into the U.S. via international borders and ports.
Don't be too hard on Roberts/Kennedy for this one. · 8 minutes ago
Have you read Scalia's dissent yet? He would contend with your points.
Feb '12
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
The King Prawn
Shane McGuire: Moreover, while I'm sure one can be in this country illegally, I'm not so sure one can be in a State illegally. That may be lawyer speak, but certainly the various States can't ban certain people from entering its borders with other States. Likewise, the federal government gets to choose who gets into the U.S. via international borders and ports.
Don't be too hard on Roberts/Kennedy for this one. · 8 minutes ago
Have you read Scalia's dissent yet? He would contend with your points. · 3 minutes ago
Such is the nature of dissents ;)
Apr '11
Re: First Impressions: "International Community" Trumps Federalism at Supreme Court
I have some doubts as to the true independent Sovereignty of the States. I thought the Civil War more or less established that individual States aren't truly sovereign. No state can leave the union or ignore federal law, can they? I mean lets be honest here.