Written by Andrew C. McCarthy
Justice Antonin Scalia, in a characteristically electrifying dissent, seized on the cataclysm at the heart of the Supreme Court’s ruling in the Arizona immigration case. It came in the form of a question: “Would the States conceivably have entered the Union if the Constitution itself contained the Court’s holding?”
Fittingly, Scalia summarized this holding, in Monday’s Arizona v. United States case, as a hypothetical provision proposed by the Framers when adoption of the Constitution was being debated: Imagine if Article I had granted Congress the power “to establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” In short, the Court ruled that the states can be precluded from their natural right of self-defense against alien outlaws if Congress, in its discretion, decides to enact national immigration standards — even if the president refuses to enforce what Congress has prescribed. Hence, at the whim of Leviathan’s central planners and passively aggressive (non-)police, the states are defenseless.
Being defenseless in this context is not merely a practical problem — namely, the problem that states and their citizens are certain to suffer that physical and financial harm. Being defenseless raises, in addition, two other considerations of epic importance.
First, the right of self-defense is a vital, ineliminable aspect of sovereignty. If it is eliminated, a state is no longer a sovereign; it becomes a subject, at the mercy of its federal master’s fancy. Second, the guarantee that states are sovereign, and would remain so, is a vital, ineliminable aspect of the states’ agreement to adopt the Constitution and create the Union. If it is eliminated, the solemn compact has been broken. Why should a state remain in a union whose government will neither protect it nor tolerate its fundamental right to protect itself?
As my friend Heather Mac Donald observes, Justice Scalia’s dissent is a “must read.” Heather also contends that Scalia’s explicit assertion of “a historic and inherent state authority to police state borders, regardless of what the feds do or do not do” has, up until now, “only been implicit” in the arguments made by supporters of the Arizona law (S.B. 1070). That is certainly true of the litigants’ arguments and the reasoning offered in judicial opinions.
It is a different story, however, in the commentariat. In fact, I emphatically posed just such an argument in an NRO column last year, when the high court decided Chamber of Commerce v. Whiting, a related Arizona immigration case (upholding the power of states to revoke the business licenses of employers who hire illegal aliens). Further, I offered the same federalism theory when Heather and I discussed preemption on the Corner in 2010, after the first lower-court ruling on S.B. 1070.
Alas, his riveting dissent notwithstanding, Justice Scalia is as much a part of the problem as of the solution on illegal immigration. So are his three fellow conservative justices, and so is most of the modern conservative movement. That’s the reluctant conclusion I came to after the Whiting decision, and Monday’s ruling only confirms it.
The problem is an iteration of what ails conservatism across the board. We sing our paeans to federalism and limited government. But when it gets down to brass tacks, we reliably opt for big, centralized government, whether the issue is illegal immigration, unsustainable welfare-state programs, education, energy, or most of the remaining “internal objects,” as Madison put it — the matters that “concern the lives, liberties, and property of the people,” including the “internal order of the state,” that proponents assured skeptics the Constitution would retain in state control. We just think we can do big “compassionate” government smarter and less intrusively than the Left — or, at least, that’s what we tell ourselves.
Conservatives by and large agree that immigration enforcement is principally a federal responsibility, and hence that Washington has the power to preempt the states from exercising their sovereign police powers. So the problem, my conservative friends, is not Obama. We are the problem. Once that “federal responsibility” premise has been accepted, the ballgame is over.
That the Court’s conservative justices are aboard this runaway train was elucidated by last year’s Whiting opinion. All four of them joined in Chief Justice John Roberts’s bold declaration that the “power to regulate immigration is unquestionably a federal power.”
In Monday’s dissent, though he makes a case for states’ rights, Justice Scalia proceeds from this same foundational assumption. Scalia is a writer of singular forcefulness. The reader is gripped by his passion for state sovereignty as essential to the nation’s founding, and for the states’ deeply rooted power to police their territories. The justice convincingly illustrates that, in the early Republic, the dubious thing was suggestion of afederal role in immigration enforcement; the state’s power was undeniable. Still, even as the words crackle off the page, the careful reader notes that Scalia has already undermined their persuasive force with a fleeting yet shattering concession made earlier (page 8) in the dissent. Immediately after first underscoring that “the power to exclude” trespassers on its territory goes to “the core of state sovereignty” (emphasis in original), Scalia writes:
Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally express its intent to abrogate.” [My italics.]
For all the rhetorical fireworks, this is Justice Scalia’s ultimate position on state sovereignty: not that it is inviolable, just that if Washington wants to strip it away, Congress needs to be clear in doing so.
That is not sovereignty. Indeed, to borrow Justice Scalia’s own method of testing a proposition, would the states have agreed to enter the Union if the Constitution had stipulated that their sovereign powers were subject to total abrogation by Congress, as long as federal legislators were plain-spoken about it? Not a chance: As Scalia puts it, “The delegates to the Grand Convention would have rushed to the exits.”
Justice Clarence Thomas is also ostensibly strong on states’ rights. At bottom, though, as his short dissent from Monday’s decision demonstrates, he’s in the same place as Justice Scalia. Thomas’s main objection to the Court’s ruling, like Scalia’s, is that nothing in the federal immigration laws passed by Congress has preempted the states. He does not appear to doubt, however, that Congress could preempt the states — again, it would just have to be done clearly and unequivocally. Justice Thomas’s objection to the majority ruling that voided three of the four contested provisions of Arizona’s immigration law is that the majority improperly substituted its own meanderings about what Congress must have been trying to accomplish for the modest words that Congress actually used. He is correct about that, but so what?
The bipartisan ruling class that runs Washington is increasingly arrogant about stuffing its free-borders pieties down the throats of the states and their beleaguered citizens. Look how quickly President Obama thumbed his nose at the Court’s upholding, at least temporarily, of the Arizona law’s Section 2 — the most controversial provision, allowing state police to inquire about a properly detained suspect’s immigration status. Before the ink on the ruling was dry, the administration defiantly announced that it was suspending immigration cooperation with Arizona — telling the state to “drop dead,” as Governor Jan Brewer aptly summarized. If the feds are going to act that provocatively, with influential conservative organs like the Wall Street Journal cheering them on, do you really think they’ll hesitate to be more definitive in their usurpations if the Supremes are telling them that is all they really need to do?
It is not just conservatives on the Court who have adopted this inflated understanding of federal power. A year ago, Texas Republican congressman Lamar Smith proposed a national requirement that all employers use the E-Verify system to check the immigration status of new hires — with the caveat that states would be barred from taking punitive actions against businesses that hire illegal aliens. Among the bill’s most significantproponents was my friend Mark Krikorian, whose invaluable Center for Immigration Studies works tirelessly to combat illegal immigration.
I took issue with Mark on the matter, in the context of an exchange about objections to Smith’s bill lodged by the Kansas secretary of state, Kris Kobach, another stalwart against immigration lawlessness (and one who, not coincidentally, helped write the Arizona law). In our debate, Mark insisted that “state laws on immigration . . . are a means to an end — better federal law enforcement everywhere.” My reply was the same as it would be today: “I could not disagree more. The purpose of state laws is to protect the people of the state — that is the end to which they are the means. A state does not legislate in order to achieve better federal enforcement. In a properly functioning federal system, where the federal government would be limited to the few things we need it to do, the states would be doing most law enforcement, tailored to their priorities, not to the policies of whatever administration happened to be in power in Washington.”
Mark’s position, however, follows seamlessly from the conventional wisdom: Immigration enforcement is, essentially, a federal responsibility. State power is limited to what Washington deigns to permit, and the exercise of that pittance must always be guided by national concerns, not the state’s security.
The states, this wisdom instructs, must never be at cross purposes with federal objectives. Until recently, you could at least say that those objectives were knowable — a state just needed to read congressional statutes, the legitimate expression of federal law. Now, however, “federal objectives” carnivorously include both administration policy and judicial speculation about what Congress must have been trying to achieve — neither of which, apparently, need be consistent with what Congress has actually said. In any event, it is quite remarkable that, in the fourth year of Obama, many on the right still cannot imagine what there should be no need to imagine because it is all too real: a federal government that not only has no interest in stopping illegal immigration but is run by politicians who affirmatively encourage illegal immigration.
If you are going to cede exclusive control of enforcement to a single authority in Washington, without any guarantee that this single authority will always be committed to the enforcement mission, you are inviting catastrophe. And now the invitation has been accepted. Quite foreseeably so: If allowed to do so, Arizona’s elected representatives, who must answer to Arizona’s citizens, would do security; but Leviathan’s elected representatives, who want to be reelected to Leviathan, and who answer as much to open-borders activists as to besieged Arizonans, will do politics.
As I’ve contended before, nowhere in the Constitution was the national government vested with an enumerated power over immigration enforcement. Congress was empowered only to set the terms for naturalization — to determine who qualifies for American citizenship. The police power, the power to enforce laws within their respective territories, was left to the states — left to the representative governments closest to the people whose lives, liberties, and property were most affected by the manner of enforcement.
Nevertheless, conservative champions of limited government, on the Supreme Court and elsewhere, have concurred in the theory that, because control of the borders and security against intruders are basic ingredients of sovereignty, a federal immigration-enforcement authority must be inferred.
Fair enough. But there are all kinds of powers that are shared in a system of dual sovereignty. When they conflict, it is not a given that federal power must prevail. Contrary to what appears to be a bipartisan consensus, the Supremacy Clause does not mean federal power always wins; it means the Constitution always wins. The Constitution does not subordinate the states and the people to the federal government; to the contrary, its main objective is to suppress the federal government, to cabin its powers to a few, limited areas of national concern. Progressives are trying to save the world, but the Framers were more concerned about saving the states.
Because of the federal government’s metastatic growth, conflicts between the dual sovereigns often involve areas not explicitly assigned to the national government by the Constitution, areas that were understood at the time of the Constitution’s adoption to be within the states’ domain. When that is the case, whatever federal power it may be legitimate to infer must be subservient to the power the states undoubtedly have, not the other way around.
Arizona’s sovereign duty is to protect its citizens from the scourge of illegal immigration. Washington’s sovereign duty is to assist Arizona in that endeavor or, at a minimum, refrain from impeding the state’s defense measures. If the federal government, on a mere inferential theory crafted by federal judges, can usurp the power that Arizona must have, then we no longer have dual sovereignty. That is, we no longer have the core guarantee that induced the states to join the Union. It is cold comfort that conservatives are fine with this arrangement as long as Leviathan proclaims its usurpations with sufficient clarity.
— Andrew C. McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.