The Supreme Court’s decision that knocked out Arizona’s strong law targeting undocumented immigrants spells trouble for other states’ look-alike laws. Even more interesting, however, are the legal arguments that lost. Justices Scalia, Thomas and Alito each wrote dissenting opinions. Since they do not agree much with each other, these opinions encase legal theories that have probably died and should be buried.
Field preemption grows powerful. The majority opinion reads, “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Immigration is 100% in the hands of the federal government and states “may not enter, in any respect.” Justice Scalia disagreed. He dismissed this “so-called field preemption” and reached the rest of his conclusions by ignoring it. Apparently, though, field preemption is here to stay.
Gone is state sovereignty to exclude undesirables. Justice Scalia’s argument that states are individual sovereign nations convinced no other justice. He brought out dusty authorities describing what kings and despots commonly did. He did not consider that America is a different type of country—one where a sovereign people meted to their government only as little authority as necessary. The majority opinion likewise rejected this sovereignty argument. A state’s sovereign right to exclude undesirables thankfully now appears dead.
Inherent sovereignty not so inherent. “Inherent” means “so clearly in existence that it needs no proof.” For example, the federal government claimed that controlling immigration was their inherent power; Justice Scalia wrote that Arizona had an inherent power to exclude persons; Justices Thomas and Alito wrote that states have inherent power to arrest people for violations of federal law; our Declaration of Independence says that people have inherent liberty rights. The Arizona v. United States opinion upholds the federal government’s inherent power, rejects Arizona’s inherent power to exclude, and trumps Arizona’s inherent power to arrest. The inherent right of liberty for all people is still in question.
No invasion. As Justice Scalia points out, the Constitution allows states to go to war if invaded or if in imminent danger. He proposes this as constitutional justification for state action against immigrants, echoing the arguments of others who have labeled the influx of undocumented immigrants an invasion. This argument wins the support of no other justice. Let’s let this invasion argument die. The Constitution does not grant states the right to go to war against whatever people they wishes to crush.
No fail-to-comply crimes. Justices Scalia and Thomas would have supported the Arizona law making it a crime for non-citizens to be without legal immigration papers. Immigration law is complex and filled with opportunities for unpredictable judge discretion. Many undocumented immigrants, once they get before a judge, discover they have a legal basis for being in the U.S. In our innocent-until-proven-guilty legal system, such immigrants have committed no crimes. The Arizona law not only assumed guilty-until-proven-innocent, it actually created the crime of not having previously proven oneself innocent of another crime. Thankfully, such state laws are now clearly unconstitutional.
The Supreme Court opinion in Arizona v. United States is a partial victory in a battle within a long war. More significantly, the battle was between two combatants on the same side! Immigrants will need to bring their own lawsuits challenging work and driver license bans. Citizens will need to challenge laws requiring them to violate immigrant civil rights without due process. In those areas, unlike in Arizona v. United States, the federal government will be fighting against—not for—undocumented immigrants.
Donald Balla is a Professor of Business and Law at John Brown University.
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