The statement at issue:
"The state has no power to close its borders to people who have no right to be there?...Arizona is not trying to kick out anybody that the Federal Government has not already said do not belong here...The Constitution recognizes that there is such a thing as state borders and states can police their borders...What does sovereignty mean if it does not include the ability to defend your borders?"-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.
We checked the Constitution, and...
It may be that, when the Supreme Court rules on state power to monitor and restrict the activities of people who have entered the U.S. illegally and remain without permission, the Justices will give states additional authority. But it seems doubtful that they will find in the Constitution a grant of state power to "police their borders" in the way that Justice Scalia seemed to assume that they could.
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.
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