Scalia Unhinged: Taking (US State) Sovereignty Very Seriously

by Peter Spiro

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.

5 Responses

  1. Thanks for highlighting the Scalia concurrence/dissent which I brought to the attention of my students tonight.  I did like Scalia referencing the decision in Medellin.  The one voice logic appears not to work very well when Congress refuses to pass a law and the President’s memorandum is not acceptable as a means to address consular rights.  The strong state sovereignty vision in Medellin and Scalia in his concurrence/dissent in Arizona remind me of the waxing and waning of the moon – dual sovereignty is always there but with different shadows at different times.  Having 50 different immigration laws across the states may be a headache for a foreigner – not just for the kinds of problems of locating a plant, but for also traveling for work or touristing.  It depends on the degree of difference of treatment in the different states.  The cooperation agreement structure of the Feds with the States – which I assume varies by state and locality – no doubt leads to their being some variation even if the federal approach is supposed to govern in all places.

  2. I’d like to preface my comment by noting that my practice is focused on immigration law. This idea of state sovereignty and state authority over immigration is one that I and some of my colleagues have tossed around.

    If Arizona was given the sovereign authority Justice Scalia seems to believe is warranted, we considered that it might be a net gain for Arizona and other states to establish their own immigration legal system with an Arizona CIS and Arizona ICE and Arizona Customs and Border Protection.

    There is already the idea of state citizenship alongside national citizenship. Except now if you wanted to come to Arizona, you’d need to apply for the appropropriate visa, get your passport issued at your local Arizonan consulate, and be inspected at the Arizona border. Once admitted, you might seek to become a Permanent Resident of Arizona and if you could find a sponsor for your Green Card, you eventually could get it and then be a hop skip and a jump from citizenship in the state with naturalization requiring a test of your knowledge of Arizona civics.

    The real humdinger of a question that Arizona and the Supreme Court would likely have to resolve is where does the Arizona border end and the US border begin? Are they the same line? If someone crosses illegally into Arizona who get’s jurisdiction? Do they have to be removed (deported) from Arizona first and then the U.S.? And what if you are subject to removal from Arizona, can you seek asylum in another state that will have you, like California maybe? Or Texas?


  3. On a comparative note – and without yet having had time to read Justice Scalia’s dissent – it is worth pointing out that some ability to exclude even fellow citizens of a state is an increasingly common element of minority protection regimes.

    This is the case, for instance, with regard to the Aaland Islands in Finland, which is a particularly well-supported regime because it is thought to now be based on regional customary law (going back to a 1921 League of Nations framework repeatedly re-affirmed by Finland after World War II). However, the details of the autonomy regime on Aaland – including a limited but significant ability to exclude outsiders – have been renegotiated in successive constitutional laws (e.g. requiring a supermajority to pass and amend). Finland also successfully sought a carve-out from the ‘four freedoms’ in order to preserve this regime when Finland acceded to the EU.

    Generally speaking, implicit and explicit rights to exclude remain a bit the exception in European autonomy regimes, although the European Court of Human Rights upheld such a regime in the Channel Islands a few years back. However, the right to exclude outsiders (including fellow citizens) is increasingly seen as a central component of the protection of indigenous peoples’ rights, as reflected in, for instance, the 2007 UN Declaration on the Rights of Indigenous Peoples (see for instance Art. 8 on protection from forced assimilation and Art. 26 on control over traditional lands).

    Beyond the normative realm, the ability to exclude outsiders is also seen as a practical benchmark in state protection of indigenous minorities or other vulnerable rural populations, as reflected in a recent analysis of community forest tenure rights regimes by the Rights and Resources Initiative:

    So shared sovereignty regimes involving a right of exclusion are definitely gaining traction worldwide, but it is fair to say that (1) as a rule, their practical details should be negotiated on a running basis between the state authorities and affected sub-national communities in order to provide legal certainty, and (2) the only type of sub-national community that can be said to have an (at least emergent) international law right to such an exercise of ‘internal self-determination’ at this stage are indigenous peoples.

  4. Rhodri, Extremely interesting comment. (Some nice irony in finding strong support for Scalia in contemporary comparative and international law!) This appears to be another way in which the ascension of a liberal right order comes into possible conflict with the parallel emerging regime on indigenous peoples.

    As for Adam’s, I play around with similar thought experiments in my book Beyond Citizenship as well as in this essay.

  5. @ Peter – Quite right, but the argument of Kymlicka and Co. would be that this dynamic actually exemplifies the more familiar clash between the liberal rights order and the state system itself. In the case of indigenous peoples, an argument for internal self-determination is precisely that they have the salient features of a state (self-government, population and territory) but lost the external self-determination lottery. 

    Thus, while opening the possibility of secession for such groups is too destabilizing to contemplate (except in extreme cases like South Sudan), they should have the opportunity to extensively renegotiate the terms of their incorporation of the larger state they find themselves in. Which sort of brings you back to the more familiar issue of liberal theory presupposing a state as the appropriate vehicle for the realization of rights but having to countenance the very different preconditions this presents individuals with based on the happenstance of where they are born. 

    @Adam – As a US citizen abroad, I ventured a different wrinkle on your analogy in order to try to illustrate the perversity of the US lifetime double declaration-filing regime:

    “For an analogy, imagine that every state in the US could force you to continue filing state tax forms every year for the rest of your life after you left that state and imposed its own taxation (on top of that of your state of current residence) on income over a certain level and capital gains anywhere else in the country. Now imagine that such states also required you to report bank accounts in other states but never informed you of this rule. Add to that a snap-enforcement campaign where they proposed to charge you $10,000 per account per year for every single unreported out-of-state account, retroactive six years. Welcome to US citizen life abroad.”

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