From Arizona To Obama — Or Romney

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Let’s leave aside, for the moment, the question of whether Arizona’s new immigration law is, as President Obama asserts, “misguided.” This newspaper happens to agree with the president on the need for a more capacious immigration reform that includes a path to citizenship even for those who came here without proper papers. Mayor Bloomberg has been particularly eloquent on this head. . . . The more newsworthy, and even explosive, question is whether what Arizona is doing is constitutional. Are we are headed for yet another confrontation that will expose the hard surface of our national bedrock? We certainly hope so. Few powers are more clearly enumerated in the Constitution as belonging to the federal government than that which, in Article 1, Section 8, Clause 4, is granted to Congress as the power to establish “an uniform Rule of Naturalization.”

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We wouldn’t want to say that Justice Kennedy and the majority on the Supreme Court were channeling The New York Sun, quoted above, when they ruled that, in the main, Arizona’s immigration law had intruded on a bright-line, enumerated power of the United States Congress. Here, though, is what we would say about the decision handed down from the High Bench this morning: Congratulations. The court struck down parts of Arizona’s immigration law but left other parts to be tested by experience. It is a victory for both President Obama and Arizona and a satisfying declaration for those of us who seek a broadly welcoming immigration policy created and enforced by the federal government.

Nor would we want to make light of the problems that Arizona faces. On the contrary, we recognize how serious they are. We tend to regard its immigration law as a kind of constitutional primal scream. Nor do we make light of Justice Scalia’s dissent; he would have upheld the Arizona law in its entirety. He dealt with the enumerated federal power to establish a uniform rule with a dissent that, if it had been a dance, would have needed a combination of Baryshnikov and Astaire to execute. The justice’s slyest sally was to point out that the famous resolutions of Kentucky and Virginia, which defied the Alien and Sedition Acts, “insisted that the power to exclude unwanted aliens rested solely in the States.”

Quoth The Great Scalia: “Jefferson’s Kentucky Resolutions insisted ‘that alien friends are under the jurisdiction and protection of 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.’” The point Justice Scalia seems to have been making here is: What would the President Obama and the other Channel 13 types have made of that had they been living back during the Federalist era? If one is for state sovereignty, to put it another way, it would be logical to be so across the centuries.

Our own view, though, is that the majority argued the point better. And marked other salient points. “As a general rule,” Justice Kennedy wrote for the court, “it is not a crime for a removable alien to remain present in the United States.” This is a point that Mayor Giuliani made in 2007 in a broadcast of Glenn Beck, only to be denounced by Governor Romney. The fact is that most of the immigration to and fro does involve civil law. Justice Scalia points out that even though it’s not a federal crime for a removable person to remain present in the United States, it could be made a state crime. He is less convincing in his suggestion that this would not be an intrusion on the uniform rule of naturalization that Congress is granted the power to establish.

If President Obama has won a big part of his showdown with Arizona, it comes with its own burdens. Just what is the admonistration going to do with the power it has just marked? So far its answer has been allowing persons who werer brought here as children are behaving well to remain without a path to citizenship, an unsatisfying compromise for both sides in this fight. And it has created the conditions that have kept the economy from recovering. This has resulted in, by some estimates, a “net zero” immigration rate on our southern border with Mexico. What good is that? What we need is a very aggressive program to deal with the security and criminal elements and a growing economy that will put a premium on more workers. Mr. Obama has faltered on that score and created an opportunity for Governor Romney.

The New York Sun

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