Scalia Unhinged: Taking (US State) Sovereignty Very Seriously
I know that most readers of the blog are interested in international law, not immigration law, but Justice Scalia’s concurrence/dissent in Monday’s SB 1070 decision has something for everyone. Scalia takes the trope of formal sovereignty as among the states of the United States to its logical endpoint:
As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitution ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. . . . We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty.
The opinion references Vattel at length. (Scalia at one point calls him “De Vattel”, as no one past the third-year of law school should do — but perhaps this is just a clever ploy to burnish his anti-internationalist credentials.)
His bottom line: “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.”
I’m not unsympathetic to the bottom line here, though emphatically on the assumption that non-constitutional constraints will better show Arizona the sins of its restrictionist ways. (For Richard Posner’s critical take on Scalia’s position, see this.) And better an entertaining, envelope-pushing, meant-to-offend opinion like Scalia’s than the dry, conventional stuff of Justice Kennedy’s opinion for the Court (complete with a sentimentalist homage to naturalization ceremonies at its conclusion). Kennedy treads familiar ground in framing immigration as a matter of foreign relations, and thus subject to near-exclusive federal power. In an era of disaggregation, I think “one voice” should be discarded to the department of dead metaphors. I’ll take the Supreme Court as a lagging indicator on the point.
In the meantime, the decision is the worst of both worlds for anti-immigration advocates, who can’t decide if this was a victory or not. If the Court had stiffed them altogether, it would have supplied powerful political ammunition for a crackdown at the federal level. As it is, the Court’s hedged validation of the “papers, please” provision won’t give restrictionists much to work with in Arizona or other state capitals, at the same time that they’re deprived of any boost in national politics.
Update: NY Times has more reax to the Scalia opinion here.