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. Please note that the views expressed do not necessarily represent those of everyone associated with G92 or any institutions with which the blogger may be affiliated. We’re always looking for new guest bloggers; please check out our Guest Blog Submission Guidelines if you’re interested.
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You are GUILTY UNTIL PROVEN INNOCENT in Navajo County Superior Court in Arizona. You better be able to prove your innocence because it is not guilty beyond a reasonable doubt. You are flat GUILTY if you have been charged or indicted on a crime with no actual proof just on someone else’s word. I know first hand how that works. I lost custody of my son for 4 months and 8 days, he was drug from my home by sheriffs and it took that long before I was able to speak in court for 15 minutes and get him back. All because my older son had been indicted on a crime he has yet to go to court on and 2 superior court judges decided he was guilty in my custody case and although he did not live in my house (but was on my property) I still lost custody of my son and I still am not allowed to take my son to church with me according to the judge until my oldest son goes to court and is found innocent. SO I lost not only my right to religious freedom but also custody based on this indictment that has yet to be heard in any court. I do believe they call that Treason against the Constitution when a judge goes against your constitutional rights. But at least it did give my little boy’s dad time to indoctrinate him into his illegal activity and had him taking pictures of dad with multiple guns although he is a felon for gun charges and have him around all sorts of other felons, attempted murderers, drug felons, other gun felons – but according to the ATF in Arizona, all felons have their gun rights restored when they get off probation. Someone forgot to tell the attorneys/felons/and lawmakers that piece of information. It is okay for a child to be involved in a felony act and of course that is not in any way dangerous to that child and what a grand way to get him to think it is cool to break the law.