While it should have become clear to most Americans by now that five of the justices of the United States Supreme Court are dyed in the wool advocates of plutocracy. What is not as often reported is the inherent radicalism of the conservatives on the court (Kennedy, the swing justice, appears to be a pro-corporate Libertarian.) But none of the justices is more radical than Antonin Scalia.
How radical is Tony Scalia? In his highly political dissent from today’s 5-3 decision striking down three out of four provisions of Arizona’s “papers please” law, Scalia launched into a political tirade, which wandered back into the recesses of American history, to a time (a better time, in Scalia’s imagination) when a state was a sovereign — like a country — that could exclude freed slaves and “Coolies.” Seriously.
The Daily Kos points to this winning passage:
But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. [...] If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. [Emphasis added]
So Arizona should … secede, maybe? But wait, there’s more. To moor his opinion that Arizona and any U.S. state retains the power to do as it pleases when it comes to “excluding persons” from its borders, Scalia jumps into the wayback machine. And by that I mean way, way back:
Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev.1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 Id., at 1883.
In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws.
And so, since states once had the authority to exclude free blacks from their territories, Arizona and any state that wishes to can enact any law they choose, to exclude free … wait …
Let’s continue. This from a bit later in Scalia’s dissent:
One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Congress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time whatever, as servants or apprentices, or to be held to service or labor.” 12 Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18 Stat. 477. And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive.
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 . . . .”
In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.
Well, at least we’re safe from the importation of “Coolie” labor…
Of course, not to be missed was Scalia’s gratuitous slap at President Barack Obama’s newly established DREAMers policy:
“The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws,” Scalia said. “Perhaps it is, though Arizona might not think so.”
Read the full SCOTUS ruling, complete with the dissents, here.