Preliminary Thoughts on Arizona v. United States: Part I

I have not a chance to fully digest the Supreme Court’s new decision in Arizona v. US, which held that three of the four challenged Arizona provisions were preempted by federal law.  But I do have some initial reactions, which I will present in two posts.

1. The line up of the justices seems significant.  The three conservatives dissented, but Chief Justice Roberts joined the majority.  Had the Chief Justice voted with his ordinary political allies, that would have left the Court tied at 4-4 (because Justice Kagan was recused.)  One might speculate – and I should emphasize the italicized term – that the Chief Justice switched his vote for some specific reason.  Two possible reasons come to mind.  First, it sometimes thought that a 4-4 split (which would not have been a precedent but would have left the Ninth Circuit decisions in place) is a failure of the Court.  The Chief might have thought that avoiding that failure, which would have been largely caused by ideological differences, would reflect especially on him, as he has emphasized the institutional need for agreement by the justices.   Second, one might guess even more speculatively that, if the Chief Justice is writing the decision striking down the mandate in the health care case, he would want to help the Administration in this case to soften the blow.  Legal realism ain’t pretty, but much of the real world isn’t.

2. It seems significant that each of the three conservative dissenters – Scalia, Thomas, and Alito – wrote separately and did not join one another’s opinions.  This reflects a large degree of disagreement.  If one adds that the Chief Justice was in the majority, then all four conservatives took somewhat different positions.  I have some thoughts below on why this may have happened.

3. Justice Scalia wrote a spirited dissent, arguing that all four Arizona provisions should have been upheld.  Most interesting from my perspective was Justice Scalia’s views on the Constitution’s original meaning.  He quite rightly in my view initially questioned the federal government’s general authority to regulate immigration.  That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.

But unfortunately Justice Scalia then dropped the ball.  While he recognized that Congress first passed a general immigration law first only in 1882, he wrote:

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States.  As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’”  Fong Yue Ting v.  United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)).  That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

Sorry, but that is inconsistent with Scalia’s principles and he should know better.  What international law says about the United States is not the relevant question, as Justice Scalia has often stated.  If the federal government had a general power over immigration, it would have been listed as an enumerated power.  And the Tenth Amendment confirms that.  As I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority.

4. What accounts for Scalia’s mistake here?  Here is one speculation.  Scalia’s reaction to the Supreme Court’s nonoriginalism depends on when it occurred.  The most recent nonoriginalism – of the Warren and Burger Courts – is disliked most strongly by Scalia.  The earlier nonoriginalism of the New Deal is more approved of by Scalia, at least as a matter of precedent.  Finally, the 19th Century nonoriginalism of the inherent powers doctrine – one of the earliest nonoriginal doctrines – gets the strongest nod, accepted not merely as precedent but also as the original meaning, despite the weakness of the case.