Reappraising ‘Arizona’

The states trying to get control of their borders have the Constitution on their side, and may yet get another hearing before the Supreme Court. Justice Antonin Scalia offers a guide.

Via Wikimedia Commons
Justice Antonin Scalia in 2013. Via Wikimedia Commons

The states are stepping up to fix President Biden’s migrant crisis — and the New York Times is none too pleased. State measures to protect their borders “could devastate their states’ economies, lead to racial and ethnic profiling,” and even “advance dangerous visions of undocumented immigrants as hostile invaders and aliens,” the Times frets, with no evidence. Yet the states have the Constitution on their side, and may yet get another hearing before the Nine on this question. 

The Great Scalia offers a guide. He spelled this out in 2012 in his famous dissent in Arizona v. United States. That’s when the high court denied the Grand Canyon State’s attempt to act independently on illegal immigration. The parallels 12 years later are striking. Lawmakers at Phoenix, faced with the federal failure to control the southern border and a disruptive migrant influx, had sought to deploy the state’s police to act where the feds would not.

Arizona appears to be a far from settled precedent, however. The decision, written by Justice Anthony Kennedy, was by a vote of five to three. Justice Kennedy conceded the “epidemic of crime, safety risks, serious property damage, and environmental problems” caused by the migrant influx in Arizona. Yet he denied the state had the authority to enact laws to combat it. That’s because, he averred, the federal government has exclusive power over immigration.

This question is back in court now that Texas, taking a page from Arizona, made it a state crime to illegally cross the border. Riders of the Fifth Circuit are weighing the Lone Star State’s law and noted that the case reprises aspects of Arizona. It could reach the Supreme Court. That puts a spotlight on Scalia’s dissent. With several new justices on the bench, including a former Scalia clerk, Justice Amy Coney Barrett, his reasoning could well convince a majority.

When the riders agreed in March to uphold a lower court’s pause on Texas’s border law, they conceded that Scalia’s arguments “did not carry the day in Arizona, and we are not free to ignore the reasoning in Arizona.” The Supreme Court, though, would be. The high court already hinted at its receptivity to the Texas law by letting the measure go into effect, briefly, in March. The law was subsequently placed back on hold by a lower court.

Scalia’s Arizona dissent offered a ringing defense of state sovereignty within the federal system. Its “defining characteristic,” he said, is “the power to exclude from the sovereign’s territory people who have no right to be there.” States had that power, Scalia contended, before the Constitution was ratified, and the parchment “did not strip the States of that authority.” The federal government has this power, too, Scalia conceded, but it cannot be “deemed exclusive.” 

Arizona’s law would have been invalid if it “conflicts with federal immigration law,” Scalia said — but it did not. The federal government had shown “willful blindness or deliberate inattention to the presence of removable aliens in Arizona.” So the state can “protect its borders more rigorously if it wishes, absent any valid federal prohibition.” Scalia explained that “lax federal enforcement” does not in itself constitute “a prohibition” on the states. 

Scalia decried how federal “nonenforcement” left “the States helpless” against illegal immigration. He refuted President Obama’s argument — echoed by President Biden’s planned mass amnesty — that the feds must prioritize, or use their discretion, when enforcing immigration laws. “To say,” Scalia wrote, “that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”

Scalia’s reasoning in Arizona is compelling. The Sun supports legal immigration, but shares concerns about the failure to control illegal border crossing. Equally lamentable are attempts to demonize migrants, as the Times wrongly suggests state lawmakers are doing by wresting control of their borders — constitutionally. Quoth Scalia: “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”

The New York Sun

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