In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: state authority to exclude people who have no legal right to be in the U.S.
-Justice Antonin Scalia, in questions and comments during the Supreme Court's hearing April 25 on the constitutionality of Arizona's law, S.B. 1070, on the regulation of undocumented immigrants living in the state.
One of the Court's prior rulings that several of the other Justices indicated will have an impact on their ruling on S.B. 1070 is the 1941 decision in Hines v. Davidowitz. In that decision, the Court said: "That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization, and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court." There were dissenters in that case, but not on that basic point.
Even if one accepts that federal "supremacy" in this field is not exclusive, and that there is some residual authority left to the states, it would not be found in the one part of the Constitution that Justice Scalia specifically cited as the basis for his comment about policing borders.
That is the clause in Article I that forbids any state -- without Congress's consent -- to impose fees for imports or exports. There is a limiting phrase, though, and that is what Justice Scalia cited. The phrase says that states may impose a fee if that is "absolutely necessary" to carry out their "inspection laws." That proviso, the Justice commented, allows a state to "inspect incoming shipments to exclude diseased materials."
The phrase, however, does not seem to apply to human beings who have entered a state, even those who have entered illegally. Arizona has not claimed authority to exclude them under its inspection laws.
It may be that Justice Scalia was talking only about parallel authority to "kick out" someone whom Congress has already determined to be here illegally, merely by the fact of their entry without permission. But there is no Supreme Court interpretation that makes deportation a shared duty of national and state governments. Those who wrote S.B. 1070 have said it encourages "self-deportation," but they have not claimed authority to force that outcome.
And it could be that he was talking about parallel authority to protect a state from a foreign invasion. Indeed, some supporters of S.B. 1070 have made that very argument. But it is not clear that the defense of the nation's borders is a constitutionally shared responsibility of national and state governments, unless state troops are summoned into national service under the Constitution's Article I to help "suppress insurrections and repel invasions."
Moreover, the Justice's comments seemed to imply that those who "do not belong here" do not, in fact, have any constitutional rights that would protect them from a state's official restraints upon them. Even the dissenters in the Hines decision in 1941 commented: "The Fourteenth Amendment guarantees the civil liberties of aliens as well as of citizens against infringement by state action in the enactment of laws and their administration as well."
One of the issues that the Supreme Court will not be deciding, at this stage in the Arizona case, is whether some parts of S.B. 1070 are invalid because they may lead to racial discrimination against undocumented immigrants. When lower courts move to sort that out, the determining factor probably will not be whether a state has power to exclude them, but rather how it deals with them while they are in this country.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
Messed up situation... I live on the border of two states. A kid recently took a case to court because he lives 1 mile from a state university in the bordering state yet he has to drive 40 miles to go to his state university..why because he gets in state tuition rates from his state but not the one closer to his home. He has to spend the time and money and effort to get to college every day yet illegals get instate tuition rates in that state althought there are not US Citizens.
Don't pretend that these things are sacred to you.
Your vague argument that they can't is pretty weak.
The fundamental fact is that immigration has NOT been delegated to the Federal government and we know what the 10th Amendment says about that.
And even if it WERE delegated, the law of AZ is designed to cooperate with the Feds, not contradict or make it difficult for the Feds. Therefore, it is Constitutional regardless.
Also, please make an argument WITHOUT citing SCOTUS. And if you're going to cite the Federalist Papers, please back it up.
Your argument that they can is laughable. And telling people they can't cite the -Supreme Court- on a matter of interpreting the constitution? That's beyond laughable. And you're complaining not about the author declining to cite the Federalist Papers, but that the justices whose decision he quoted didn't cite them.
So if we're talking the constitution and we're not allowed to talk about the Framers, or about the Supreme Courts who interpreted them, who, exactly, are we supposed to listen to? More to the point, why the hell should we listen to them? I'm not convinced you'll EVER find a better source on the constitution then the SCOTUS or the Federalist Papers.
The reason that naturalization was put in is that based on the original Articles of Confederation, if one state made someone a citizen, other states had to honor it even if they didn't qualify under the other states' citizenship guidelines and one rule fixed that. Otherwise, that would have remained with the states as well.
SCOTUS has been so off script for the past 80 years that their opinions are laughing stock. For instance, when one SCJ says that commerece between states also includes anything that might affect it. THAT is laughable. That's simply making things up to suit. When 5 SCJs say that taking your land to sell to a corporation is "public welfare", that is laughable.
We can and SHOULD talk about the Federalist Papers. But don't just claim they said something, quote it. In this case the SCJ claimed something that is NOT there. Quite the opposite.
At least they certainly do encourage it in most cases for federal laws pertaining to everything from possible terrorists to counterfeiting.
The federal government can take control at any time (which is true with 1070) and they can and do have the court proceedings take place in federal courts.
Meanwhile, your 'thought' is very brief. If that was as simple as it was, why would we need a federal government at all? States just govern themselves!
It's also dead wrong. Your 'thought' is not an opinion, it is a misstatement of fact. Article VI, Clause 2 of the Constitution establishes the Supremacy Clause, handing the Federal Government power over the States in cases of shared jurisdiction. In Article 1, Clause 8, the Federal Government is given the power to promote invention, to establish post offices and roads, and to establish a 'uniform rule of naturalization', or rather, immigration.
By the way, we tried the weak federal government thing. Called the Articles of Confederation. Abject failure. Do some research on why it failed before you advocate weakening the federal government all over again.
That is the "always" increasing powers of the federal government.
Not too many worry that they have certain powers or that those powers make our government strong. But that level was reached many, many decades ago.
And the strive for more power over peoples lives continues. That is the concern. Obamacare for instance would grant the feds so much control over our loves and they would make all the decisions on how and what care we receive. How can that be constitutional or not a massive step up in power for the fed? The law even allows them the ability to make decisions on what we pay for medical based on our bank accounts so they get all that info too and penalize people who save while rewarding people who don't with free health care.
I'm not arguing a change in our health care system but I certainly don't want the people in control of the post office or politicians to have ANY say in it.