Should Immigration Supporters Hope SCOTUS Upholds Arizona's Law?

As Jerry Tuccille noted earlier this afternoon, the Supreme Court is scheduled to hear arguments for and against Arizona's immigration law, a.k.a. S.B. 1070, on Wednesday. In a New York Times op-ed piece, Temple University law professor Peter Spiro argues that the S.B. 1070's opponents should hope the Court upholds it, because "laws like Arizona's are such bad policy that, left to their own devices, they will die a natural death—and their supporters will suffer the political consequences." Spiro predicts that Arizona-style laws, which aim to make life so difficult for illegal immigrants that they decide to "self-deport," will be killed by opposition from farmers and other employers, loss of convention business, and reductions in foreign investment. But if the Supreme Court overturns S.B. 1070, he says, there is apt to be a backlash that results in illiberal immigration legislation at the national level.

Although Spiro's tactical argument sounds plausible, he does not directly address the issue that the Supreme Court is supposed to be considering: Is S.B. 1070 constitutional? "One of federalism's core virtues is the possibility of competition among states," Spiro writes, adding that "competition in this context is likely to vindicate pro-immigrant policies." But portraying S.B. 1070 as the sort of policy experiment that is protected by the 10th Amendment assumes that it does not impermissibly impinge on a power "delegated to the United States by the Constitution." The Obama administration, of course, argues that it does. "Arizona has adopted its own immigration policy," says the administration's brief, "which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments that the INA [Immigration and Nationality Act] provides for the Executive Branch to make." If Arizona starts routinely detaining suspected illegal immigrants, for instance, that pressures the federal government to use its law enforcement resources in a particular way, which would make it more difficult to focus on deporting criminals, as opposed to peaceful, gainfully employed people who have not broken any laws except the ones barring them from living and working in the United States.

Given that border control is a federal responsibility, letting states go their own way on immigration seems much more constitutionally problematic to me than, say, letting states decide for themselves whether to let patients use marijuana as a medicine. Yet somehow Arizona Gov. Jan Brewer came to the opposite conclusion (while Barack Obama opposes federalism in both contexts). Are we both simply reading our policy preferences into the Constitution? 

SCOTUSblog has documents related to Arizona v. U.S. here. In a 2010 column, I discussed U.S. District Judge Susan Bolton's ruling against S.B. 1070.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    You obviously hate America Sullum. And Freedom.

    /sarc

  • R C Dean||

    But portraying S.B. 1070 as the sort of policy experiment that is protected by the 10th Amendment assumes that it does not impermissibly impinge on a power "delegated to the United States by the Constitution."

    That's the question. And while its perfectly clear that naturalization (that is, qualification for and admittance to citizenship) is exclusively federal, its not at all clear that immigration (that is, who can reside here) is exclusively federal.

    Article I Section 8 refers only to naturalization, after all.

    SCOTUS, of course, has ruled that the reference to naturalization includes immigration by implication, or in a penumbra, or something, but it is not hard at all to conclude that if the Founders had meant to give the federal government exclusive authority over immigration as well as naturalization, they knew how to do so.

  • Just Dropping By||

    See the quotations from Henderson v. Mayor of N.Y., 92 U.S. 259, 270-71 (1876) in response to protefeed below. Alito relied on that case just last month as part of the basis for his concurrence in Zivotofsky v. Clinton, 132 S. Ct. 1421 (Mar. 26, 2012), in which he stated "Powers conferred on Congress by the Constitution certainly give Congress a measure of authority to prescribe the contents of passports and CRBAs. The Constitution gives Congress the power to regulate foreign commerce, and this power includes the power to regulate the entry of persons into this country . . . ." (Emphasis added.) If you're not getting Alito on-board with giving states the right to regulate immigration, I highly doubt you're getting Roberts either.

  • ||

    Given that border control is a federal responsibility

    Citation needed.

    Not seeing it here:

    Article 1 - The Legislative Branch
    Section 8 - Powers of Congress

  • Just Dropping By||

    You need to get your eyesight checked. Section 8 expressly allows Congress to regulate commerce with foreign nations. Per SCOTUS:

    [T]he provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power "to regulate commerce with foreign nations." As was said in United States v. Holliday, 3 Wall. 417, "commerce with foreign nations means commerce between citizens of the United States and citizens or subjects of foreign governments." It means trade, and it means intercourse. It means commercial intercourse between nations, and parts of nations, in all its branches. It includes navigation, as the principal means by which foreign intercourse is effected. To regulate this trade and intercourse is to prescribe the rules by which it shall be conducted. "The mind," says the great Chief Justice, "can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of another;" and he might have added, with equal force, which prescribed no terms for the admission of their cargo or their passengers. Gibbons v. Ogden, 9 Wheat. 190.
  • Just Dropping By||

    Quote continued:

    Since the delivery of the opinion in that case, which has become the accepted canon of construction of this clause of the Constitution, as far as it extends, the transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations, of vast interest to this country, as well as to the immigrants who come among us to find a welcome and a home within our borders. In addition to the wealth which some of them bring, they bring still more largely the labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture. Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?

  • Just Dropping By||

    Quote continued:

    The transportation of a passenger from Liverpool to the city of New York is one voyage. It is not completed until the passenger is disembarked at the pier in the latter city. A law or a rule emanating from any lawful authority, which prescribes terms or conditions on which alone the vessel can discharge its passengers, is a regulation of commerce; and, in case of vessels and passengers coming from foreign ports, is a regulation of commerce with foreign nations.

    Henderson v. Mayor of N.Y., 92 U.S. 259, 270-71 (1876).

    Just last month, Alito cited this case approvingly in his concurrence to Zivotofsky v. Clinton, 132 S. Ct. 1421 (Mar. 26, 2012) for the proposition, "Powers conferred on Congress by the Constitution certainly give Congress a measure of authority to prescribe the contents of passports and CRBAs. The Constitution gives Congress the power to regulate foreign commerce, and this power includes the power to regulate the entry of persons into this country . . . ."

  • ||

    "....does not directly address the issue that the Supreme Court is supposed to be considering: Is S.B. 1070 constitutional? "

    Yeeeah. There seems to be alot of that going around, and has been for a long time.

  • Evil Otto||

    Supporters of legal immigration should definitely hope SCOTUS upholds the AZ law. Because they should support that law.

    But we know that's not what you're asking.

  • Proprietist||

    Totally wrong. Even assuming one was virulently opposed to illegal immigration and believe borders should be closed off, that does not mean one supports law enforcement harassing or detaining legal residents and natural born citizens for immigration paperwork because they don't speak perfect English or look swarthy and foreign.

  • Evil Otto||

    Of course this is more evidence that some libertarians are willing to drop federalism like a hot potato when they see an opportunity to advance their ideology on issues outside the scope of libertarianism.

  • Proprietist||

    Federalism is not libertarianism. Technically it's within the bounds of federalism to have state-level slavery with gulags for dissidents that criticize the state government, as long as it's not applied to the state next door. Yet no libertarian would advocate for the right for any level of state to impose slavery or jail dissidents.

    This is what get me about Ron Paul. Actions like Kelo v. New London remain within the bounds of his consititutional vision because he considers state/local actions outside federal jurisdiction (even if he criticizes them). Likewise he criticized Lawrence, one of the most libertarian decisions in the past 10 years, for being outside the jurisdiction of the Supreme Court. Applying the 14th Amendment to states expands liberty. Ron Paul does not believe it should be.

  • Evil Otto||

    But portraying S.B. 1070 as the sort of policy experiment that is protected by the 10th Amendment assumes that it does not impermissibly impinge on a power "delegated to the United States by the Constitution."

    That's actually not the question. The 10th doesn't forbid state laws which deal with a power delegated to the feds, it merely does not apply to them.

    And the Supremacy Clause only applies where there is a contradiction between federal and state law. Which is not the case here, as the AZ law merely assists in enforcement of federal law.

  • Proprietist||

    14th Amendment somewhat overrides this openended interpretation of the 10th Amendment:

    "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    Profiling persons because they do not look (in an officer's subjective interpretation) like legal residents (whatever that means) certainly violates the equal protection clause.

  • ZungyMomo||

    Sounds like a pretty good plan to me dude. Wow.

    www.Planet-Anon.tk

  • Homple||

    For some reason, the USA is extremely suspicious of foreigners who arrive on airplanes. They must be bio-identified and have their documents scrutinized before being allowed into the country. Those who are not properly documented and identified are slapped in an isolation room and briskly sent back whence they came and nobody here seems to care about what happens to them.

    On the other hand, if a foreigner crawls through a gap border fence in Texas, California, New Mexico, Arizona or crosses the Rio Grande, he becomes the pet of Democrats and libertarians and much concern is shown for his happiness and welfare.

    Why the discrepancy in treatment?

  • MWG||

    Actually, libertarians tend to be suspicious of neither so your point is really meaningless.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement