As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas. But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds. One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration.
In Arizona v. United States, Justice Scalia started strong, initially questioning the federal government’s general authority to regulate immigration. That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.
But unfortunately Justice Scalia then made an enormous mistake. While he recognized that Congress first passed a general immigration law only in 1882, he wrote:
I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893). . . . That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”
This is extremely weak. First, what international law says about the United States is not the relevant question. What is relevant is what the Constitution says about the matter, and the Constitution does not give Congress authority over immigration. Congress does have the power to enforce offenses against the law of nations, but that would not confer power to regulate immigration (since immigration is not an offense under international law). Second, there is no conflict with international law. The entire immigration power would be shared between the federal government and the states, which would meet any international law expectations for the country. Third as I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority. Congress could, for example, regulate ships that are coming from other nations and pass restrictions on immigration as to those ships. Congress could also regulate immigration coming through the territories (which was a large part of the US in the early years) through its power to pass legislation as to the territories.
Claiming that the federal government possesses an immigration power through an inherent attribute of sovereignty is a stake in the heart of the enumerated powers and the Tenth Amendment. This isn’t even reading an acknowledged power broadly, like the Commerce Power. It is just making up a new power where there is no textual indication. It is hard to believe that the Tenth Amendment does not forbid this.
Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions in the case. One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.
Scalia’s position in this case is especially unfortunate, as he had an alternative ground to found his position: judicial precedent. Scalia could have simply argued that judicial precedent had recognized such a power for more than a century and therefore he would follow it. But he did not do that; instead, he addressed the original meaning issue and failed miserably.
Even Homer nods, and one should not make too much about this mistake. Justice Scalia was a giant and one can only expect so much. But if we are going to discuss his problematic opinions, this was one of the worst from an originalist perspective.