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.

The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida).

What’s interesting for our purposes: this is another decision in which the Court makes not even a passing reference to international or foreign law.  Miller follows on Kennedy v. Louisiana in that regard (though Justice Kennedy give IL a nod in Graham).  The Court would have had plenty to work with; international practice is clearly moving away from life sentences in any context, most of all where juveniles are involved or there’s no possibility for parole. (See the amicus brief in the case from Amnesty International and other human rights organizations.)

An unconscious omission? Not a chance. The Court saw a significant backlash from its references to international law in Roper, Atkins, and Lawrence. All nominees to the Court are now asked in confirmation hearings for their positions on the use of foreign law, and all (Democrats included) freely disavow it. International law is the third rail of constitutional jurisprudence these days.

But that doesn’t mean international law is inconsequential in this context. International norms are affecting domestic actors, including states, whose practice is relevant to Eighth Amendment determinations. And the justices of course can take IL into account on the sneak, as it were, by way of adjusting US rights standards to international law without drawing the fire that explicit references will draw. The result is the same: the US comes into line.

As predicted here, the Supreme Court delivered a split decision today in the Arizona immigration case.  But to the extent that it’s a partial victory for supporters of SB 1070, it’s only a nominal one.  Justice Kennedy’s majority opinion broadly validates federal power over immigration, leaving a very confined space for state activity.

Kennedy’s opinion situates immigration law as part of foreign relations.

[The federal power over immigration] rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)).

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest­ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa­rate States. See Chy Lung v. Freeman, 92 U. S. 275, 279– 280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of appar­ent interest or injury” might take action that would un­ dermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all interna­tional relationships . . . has to do with the protection of the just rights of a country’s own nationals when those na­tionals are in another country.”  Hines v. Davidowitz, 312 U. S. 52, 64 (1941).

Bonus “one voice” line at page 18 of the slip opinion.

I have more to say about the decision over at Scotusblog. I’m not surprised by the result, but I am surprised by the tone. I think the decision will take a lot of wind out of restrictionist sails at the state level. The unintended consequence might be redoubled efforts at the federal level to toughen up on immigration.

Here’s an interesting report just out from the Open Society Initiative for Eastern Africa on the citizenship deficit in the wake of South Sudan’s secession. The problem: several hundred thousand persons of South Sudanese descent resident in the north following the breakaway who now apparently have no status at all – ie, they’re stateless. This is the definitive paper on how nationality continues to dog resolution of the Sudan split. (The report’s author, OSI’s Bronwen Manby, has almost single-handedly engaged African states on citizenship issues, with some success – a striking example of norm entrepreneurship.)

The report frames a right to nationality in this context.  It’s a credible one, notwithstanding the trope that nationality remains a matter of sovereign discretion. Especially in the context of state succession, there’s a pretty good argument that individuals should be entitled to citizenship in their (new) state of habitual residence.  See this, for instance, from the International Law Commission – this was an issue that got a lot of play in the breakup of Yugoslavia.

Pushing the envelope a little further, the report suggests a limited right to maintain dual nationality. That’s not really plausibly asserted as a general right (though a normative case can be made). What makes it tenable here: Sudan allows its citizens to hold dual nationality with any state other than South Sudan.  That opens the door to an argument that the regime is discriminatory on the basis of national origin. Never mind that nationality regimes have long discriminated on the basis of national origin – anti-discrimination norms have got some traction in this context, and it will be interesting to see if the argument sticks here.

Story here, and a lot of play on this morning’s BBC Newshour.  This is the second time in recent months that so-called “diplomatic asylum” has crept into the headlines, last with respect to Chen Guangcheng in China in May. See this earlier post, which links to an excellent Foreign Policy background piece on diplomatic asylum.

Unlike the Chen case, I doubt very much that the UK will agree to Assange’s safe passage out of the country on the way to Ecuador even if Ecuador grants him asylum (which itself seems like a stretch, insofar as the Swedish sex case against Assange hardly qualifies as political persecution, at least not as customarily conceived – but see the Embassy of Ecuador’s statement here). So the best Assange can hope for is a long stay in non-country house quarters.

Speaking of Ecuador, is it trying to revive its imperial ambitions, in some postmodern way? See this engaging piece by Frank Jacobs, the master of cartographic stories, coincidentally out today in the NY Times (calling Duncan Hollis: interesting treaty tales therein).

This is a great book, and I am almost completely on board with the orientation here.  Paul is right on the money in navigating between the territorial sovereigntists on the one hand and the cosmopolitan universalists on the other. The critique of the universalists is especially key insofar as it persuasively rebuts a standard sovereigntist fallacy (along the lines of, the sovereign state may be imperfect, but it sure beats “world government”). The case studies — mostly involving state action and judicial action in particular — are less appealing to those of us with new governance instincts, but Paul is careful to qualify his project, or at least this part of his project, as focusing on the still vigorous pull of the nation-state. The theory works with non-state action as well (as Paul highlights along the way). International law scholars of all descriptions will find a lot to work with here.

I have two broad thoughts in response, one on the trumping effect of international law (even in a pluralistic system), the other floating questions of community recognition and boundaries. . .

The Supreme Court’s decision in the SB 1070 case is imminent (the only suspense now being whether it gets a separate-day release from the health care case).  I think the Court will split the difference, upholding key sections of the law, striking down others.  The safest money has it validating the “papers, please” provision of the law under which AZ law enforcement must make a determination of immigration status where there is reasonable suspicion that an alien is in the country illegally.  Whatever else the decision holds, that will be cause for SB1070 proponents and restrictionists to claim victory.

But will it make any difference?

A new survey from ImmigrationWorks, a centrist policy shop with a business-oriented take, suggests not. In last term’s Whiting decision, the Court decided the narrower question of whether states could require employers use e-Verify where the federal law made it optional only (narrow in substance but also in reasoning – the issue boiling down to the interpretation of a single clause in a 1986 federal immigration statute).  The Court gave state-mandated e-Verify the green light.

The number of states that added mandatory e-Verify laws in Whiting’s wake: 0.

So it’s possible we’ll witness the same phenomenon even if the Court upholds key provisions of SB 1070. I think in any case the number of states that move to take advantage of new-found constitutional discretion will be very low. If so, that’ll prove a much more significant victory for immigrants than a victory in the Supreme Court – a more durable political one that could mark the beginning of the end of this cycle of hostility against newcomers.

We’re delighted this week to host a discussion of Paul Schiff Berman’s “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders” (Cambridge University Press). Paul is the Dean and Robert Kramer Research Professor of Law at George Washington University Law School. This is a rich and broadly argued book (Paul confesses to being a “lumper,” I think in the best sense). From the jacket:

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing and we cannot expect territorial borders to solve all these problems. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions and practices that aim to manage, without eliminating, the legal pluralism we see around us. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

We’ll be joined for the roundtable by Jeff Dunoff (Temple Law); Janet Levit (Tulsa Law); Hari Osofsky (Minnesota Law); and David Zaring (Wharton), along with members of the regular OJ team. We’ll look forward to a stimulating discussion of Paul’s important new book.

Supporters of US ratification of the Law of the Sea Treaty now have a network home, curiously called “The American Sovereignty Campaign.” It seems to be a serious undertaking, counting the US Chamber of Commerce and the Pew Charitable Trusts among its members, running this polished ad in the print media.

What of the use of “sovereignty” here?  From the coalition’s website:

Here you will find the supporting documents and testimonials that demonstrate the overwhelming support for immediate ratification of the Law of the Sea Treaty.  As you will see, the need for action is greater than it has ever been in order to protect and expand America’s sovereignty and national and economic security.

And from that ad (quoting John Negroponte):

With ratification, America would secure international recognition of the greatest expansion of resource sovereignty in its history, gaining exclusive access to resources in a region larger than the area of the Louisiana Purchase and Alaska combined.

So UNCLOS is pro-sovereignty because it literally (littorally) and legally recognizes US jurisidiction over huge swathes of the ocean.  You have to admire this PR attempt to meet opponents on their own rhetorical terms, which is NOT to predict that this novel use of “sovereignty” will have political legs.

Ukraine and Honduras have initiated complaints at the World Trade Organization against Australia with respect to the latter’s plain cigarette packaging rules.  Neither country has much trade with Australia.  (Ukrainian cigarettes? Doesn’t sound very appealing!)  So why bother?  Because the cigarette companies are fronting legal costs.  From Reuters:

Both complainants have “requested consultations” with Australia, the first step in the WTO legal process. The first round of negotiations was held in the past month, she said.

“Our belief is that some people in the meeting were British American Tobacco lawyers,” she told Reuters, adding that she wasn’t aware of any date for a second round.

A spokesman for British American Tobacco confirmed to Reuters that the company had provided assistance for the WTO challenges but could not confirm that BAT lawyers were directly involved in the talks.

One could imagine tobacco companies actually paying countries to bring such claims (or paying them off, with offers of direct investment) – otherwise why annoy a medium power like Australia.  Would there be anything WTO non-compliant about that?

It goes to show that international organizations, even when formally intergovernmental, are increasingly subject to non-state penetration. (Another example: Greenpeace’s paying membership dues for minor states in the International Whaling Commission – see pp. 80-81 of this interesting paper.)

Perhaps that’s the answer to Vincent Cerf’s op-ed in today’s NY Times, sounding the alarms with respect to a possible UN power grab over internet governance.  Who knew the obscure International Telecommunications Union could play global governance bogeyman.  Cerf issues a call to the virtual barricades against intergovernmental regulation:

the I.T.U. creates significant barriers to civil society participation. . . .I encourage you to take action now: Insist that the debate about Internet governance be transparent and open to all stakeholders.

The point is surely well taken – the legitimacy (however defined) of such processes depends on the participation of civil society and corporate actors.  I suspect, though, that Google and other powerful interests will enjoy channels of influence, one way or another, so no need to fret about world (internet) government just yet.

We should have known that it would take someone on the Hill about ten minutes to go after Eduardo Saverin and tax renunciants. Charles Schumer and Bob Casey are introducing legislation entitled the Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy Act to make renunciants pay more dearly for their inconstancy. (Yes, that’s the “Ex-PATRIOT Act”. How about a moratorium on forced legislative acronyms? I hereby propose the Legislative Acronyms Mitigation and Elimination Act.)

From Schumer’s press release, the operative heart of the proposal:

If the individual has a legitimate reason for renouncing his or her citizenship, no penalties will apply. But if the IRS finds that an individual gave up their passport for substantial tax purposes, then it will prospectively impose a tax on the individual’s future investment gains, no matter where he or she resides. This would eliminate any tax benefit and financial incentive from renouncing one’s citizenship. The rate of this capital gains tax will be 30 percent, in keeping with the rate that is already applied on non-resident aliens for dividends and interest earnings.

So long as the individual avoids these taxes, they would be inadmissible to the United States forever.

In other words, pay up, indefinitely, or you’re never coming home again.  (This time, apparently, they mean it –  as I suspected below, the current exclusion provision is apparently not enforced.)

My instinct is that this isn’t going to become law, if only because it’s about enforcing taxes and Republicans in the House will be skeptical. (I wonder what Grover Norquist thinks.) If it did, I think it would pose an interesting international law question. Article 15 of the Universal Declaration of Human Rights asserts that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality,” a norm arguably reflected in customary law.  Would capital gains for life be “arbitrary”? Perhaps. There’s also this from US law. . .

NYT’s Room for Debate takes up the question of dual citizenship, with contributions from Ayelet Shachar, David Abraham, Mark Krikorian, Jose Itzigohn, and myself.  Krikorian is predictably and harshly disapproving, on the old “it’s like bigamy” model.  Ayelet, Jose, and myself are all more or less in favor.

In some ways, the most interesting contribution comes from David Abraham, a Marxist historian (I think self-identified as such) who teaches law at the University of Miami.  He points out that dual citizenship is all very nice for the globalized elites, but doesn’t do much good for the rest of the world.

It’s an equality argument that can’t be dismissed.  Someone with multiple passports (using them, as Abraham puts it, like credit cards) has an advantage over someone with just one, there’s no denying that.  I wonder, though, if dual citizenship isn’t getting distributed in a way that correlates less with class than territorial randomness.  The rich are obviously more likely to have the status, but there are a lot of non-elites from places like Mexico and the DR that have dual citizenship by accident of birthplace or parentage.

I’m less persuaded by Josh Marshall’s argument over at TPM, which plays off both the equality and (surprisingly) marriage riffs:

[A]t least at the level of principle, citizenship is unitary — you can’t be a citizen of two countries any more than you can be married to two people at the same time. Some people find this nationalistic or xenophobic. But it’s neither. To me it’s at the root of our equality as Americans. That’s why the Salvadoran immigrant to the woman whose ancestors came over on the Mayflower because they’ve both cast their lot as part of the same national community. If citizenship is purely transactional, the people who lack power are profoundly disadvantaged.

That romanticizes singular citizenship (really: singular US citizenship) in an almost weepy kind of way.  It ignores that forcing citizenship choices may compromise political rights and confine individual identities. It also suffers from a gaping middle: there’s a lot between conceiving of citizenship as marriage and conceiving of citizenship as a transaction.  Like: conceiving of citizenship as membership in an association, one with a rich history and intense pull, but not categorically different from other forms of association – most of which allow for multiple ties.