“The problem is an iteration of what ails conservatism across the board. We sing our paeans to federalism and limited government. But when it gets down to brass tacks, we reliably opt for big, centralized government, whether the issue is illegal immigration, unsustainable welfare-state programs, education, energy, or most of the remaining “internal objects,” as Madison put it — the matters that “concern the lives, liberties, and property of the people,” including the “internal order of the state,” that proponents assured skeptics the Constitution would retain in state control. We just think we can do big “compassionate” government smarter and less intrusively than the Left — or, at least, that’s what we tell ourselves.”
Justice Antonin Scalia, in a characteristically electrifying dissent, seized on the cataclysm at the heart of the Supreme Court’s ruling in the Arizona immigration case. It came in the form of a question: “Would the States conceivably have entered the Union if the Constitution itself contained the Court’s holding?”
Fittingly, Scalia summarized this holding, in Monday’s Arizona v. United States case, as a hypothetical provision proposed by the Framers when adoption of the Constitution was being debated: Imagine if Article I had granted Congress the power “to establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” In short, the Court ruled that the states can be precluded from their natural right of self-defense against alien outlaws if Congress, in its discretion, decides to enact national immigration standards — even if the president refuses to enforce what Congress has prescribed. Hence, at the whim of Leviathan’s central planners and passively aggressive (non-)police, the states are defenseless.
Being defenseless in this context is not merely a practical problem — namely, the problem that states and their citizens are certain to suffer that physical and financial harm. Being defenseless raises, in addition, two other considerations of epic importance.
First, the right of self-defense is a vital, ineliminable aspect of sovereignty. If it is eliminated, a state is no longer a sovereign; it becomes a subject, at the mercy of its federal master’s fancy. Second, the guarantee that states are sovereign, and would remain so, is a vital, ineliminable aspect of the states’ agreement to adopt the Constitution and create the Union. If it is eliminated, the solemn compact has been broken. Why should a state remain in a union whose government will neither protect it nor tolerate its fundamental right to protect itself?
As my friend Heather Mac Donald observes, Justice Scalia’s dissent is a “must read.” Heather also contends that Scalia’s explicit assertion of “a historic and inherent state authority to police state borders, regardless of what the feds do or do not do” has, up until now, “only been implicit” in the arguments made by supporters of the Arizona law (S.B. 1070). That is certainly true of the litigants’ arguments and the reasoning offered in judicial opinions.
It is a different story, however, in the commentariat. In fact, I emphatically posed just such an argument in an NRO column last year, when the high court decided Chamber of Commerce v. Whiting, a related Arizona immigration case (upholding the power of states to revoke the business licenses of employers who hire illegal aliens). Further, I offered the same federalism theory when Heather and I discussed preemption on the Corner in 2010, after the first lower-court ruling on S.B. 1070.
Alas, his riveting dissent notwithstanding, Justice Scalia is as much a part of the problem as of the solution on illegal immigration. So are his three fellow conservative justices, and so is most of the modern conservative movement. That’s the reluctant conclusion I came to after the Whiting decision, and Monday’s ruling only confirms it.
The problem is an iteration of what ails conservatism across the board. We sing our paeans to federalism and limited government. But when it gets down to brass tacks, we reliably opt for big, centralized government, whether the issue is illegal immigration, unsustainable welfare-state programs, education, energy, or most of the remaining “internal objects,” as Madison put it — the matters that “concern the lives, liberties, and property of the people,” including the “internal order of the state,” that proponents assured skeptics the Constitution would retain in state control. We just think we can do big “compassionate” government smarter and less intrusively than the Left — or, at least, that’s what we tell ourselves.
Conservatives by and large agree that immigration enforcement is principally a federal responsibility, and hence that Washington has the power to preempt the states from exercising their sovereign police powers. So the problem, my conservative friends, is not Obama. We are the problem. Once that “federal responsibility” premise has been accepted, the ballgame is over.
That the Court’s conservative justices are aboard this runaway train was elucidated by last year’s Whiting opinion. All four of them joined in Chief Justice John Roberts’s bold declaration that the “power to regulate immigration is unquestionably a federal power.”
In Monday’s dissent, though he makes a case for states’ rights, Justice Scalia proceeds from this same foundational assumption. Scalia is a writer of singular forcefulness. The reader is gripped by his passion for state sovereignty as essential to the nation’s founding, and for the states’ deeply rooted power to police their territories. The justice convincingly illustrates that, in the early Republic, the dubious thing was suggestion of a federal role in immigration enforcement; the state’s power was undeniable. Still, even as the words crackle off the page, the careful reader notes that Scalia has already undermined their persuasive force with a fleeting yet shattering concession made earlier (page 8) in the dissent. Immediately after first underscoring that “the power to exclude” trespassers on its territory goes to “the core of state sovereignty” (emphasis in original), Scalia writes:
Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally express its intent to abrogate.” [My italics.]
For all the rhetorical fireworks, this is Justice Scalia’s ultimate position on state sovereignty: not that it is inviolable, just that if Washington wants to strip it away, Congress needs to be clear in doing so.
That is not sovereignty. Indeed, to borrow Justice Scalia’s own method of testing a proposition, would the states have agreed to enter the Union if the Constitution had stipulated that their sovereign powers were subject to total abrogation by Congress, as long as federal legislators were plain-spoken about it? Not a chance: As Scalia puts it, “The delegates to the Grand Convention would have rushed to the exits.”
Justice Clarence Thomas is also ostensibly strong on states’ rights. At bottom, though, as his short dissent from Monday’s decision demonstrates, he’s in the same place as Justice Scalia. Thomas’s main objection to the Court’s ruling, like Scalia’s, is that nothing in the federal immigration laws passed by Congress has preempted the states. He does not appear to doubt, however, that Congress could preempt the states — again, it would just have to be done clearly and unequivocally. Justice Thomas’s objection to the majority ruling that voided three of the four contested provisions of Arizona’s immigration law is that the majority improperly substituted its own meanderings about what Congress must have been trying to accomplish for the modest words that Congress actually used. He is correct about that, but so what?