U.S. Supreme Court Justice Antonin Scalia is known for his intellectual heft, conservative politics, and his colorful writing. Scalia’s opinions, and his dissents, are often the most entertaining aspect of Supreme Court decisions (or the most troubling, depending on your point of view). And Scalia did not disappoint with his epic dissent in the case of Arizona’s controversial “papers please” immigration law.
In disputing the 5-3 majority (Justice Elena Kagan recused herself, because she worked on the government’s opposition to the Arizona immigration law when she was solicitor general) which found three of four contested provisions of the SB 1070 law unconstitutional, Scalia excoriated President Barack Obama for ordering his Homeland Security Department to not deport immigrants who would have been eligible to remain in the country under the DREAM Act, had Republicans not fillibustered it (by the way, the DREAM Act, and President Obama‘s executive order, were not even issues being decided by the Court this week).
But Scalia did more than take partisan shots at the White House. He also argued that in the good old days of America (read, the 18th century) — each U.S. state was a sovereign entity, almost like a small country of its own. And those sovereign states were able to exclude anyone they wanted to from coming in. From the epic dissent:
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), … 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. [Emphasis added]
Was Scalia arguing that it was constitutional for states to exclude freed black slaves from their borders? Hopefully not. But thank goodness the Fourteenth Amendment took care of the whole “citizenship” thing, for those who don’t long for an America the way it was during the first 100 years of the Republic.
Scalia had more to say about America’s founding era, which included the right of sovereign states to keep unwanted labor outside their borders:
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.” … 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. … And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration. Of course, it hardly bears mention that Federal immigration law is now extensive.
Surprisingly — well, not surprisingly — Scalia wrote that he accepts the federal intrusion into immigration enforcement in the case of excluding the “Coolie” laborers. After all, that was about keeping foreigners out. But he adds that, “it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so.”
In other words, the Court should have allowed Arizona to do as it pleased, excluding those persons — whether vagrants, indigents, or unwanted laborers or, well, you get the idea — that it wants.
Thanks for sharing, Justice Scalia.
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