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发帖数: 29846 | 1 By Herbert W. Titus and William J. Olson
On April 25, 2012, the U.S. Supreme Court heard oral argument in Arizona v.
United States, involving the constitutionality of the State's effort to
combat illegal immigration. In one sense, it was a rematch between former
Solicitor General Paul Clement, arguing for Arizona, and the current
Solicitor General, Donald Verrilli, contending for the United States. The
two had squared off just a month before in United States v. Florida, the
battle royale over the constitutionality of the ObamaCare mandate requiring
everyone to purchase health care insurance prescribed by the federal
government.
In each case, the justices, by their questions and comments, appeared to
disfavor the Obama administration's position. In the ObamaCare case,
several justices expressed concern that, if the individual mandate were to
be found constitutional, it would dismantle the federal system, rendering
the Tenth Amendment reservation of powers to the States and the people a
dead letter. Now, in the Arizona immigration case, several justices
expressed concern that the Obama Administration's claim of "exclusive power"
to regulate immigration would have a similar impact on the independence and
sovereignty of the 50 states.
The issue arose early in the oral argument, even before the solicitor
general could make his claim of exclusivity. Justice Scalia kicked off,
asking Mr. Clement whether he would concede "that the State has to accept
within its borders all people who have no right to be there, that the
Federal Government has no interest in removing ... and the State has no
power to close its borders to people who have no right to be there."
Remarkably, Mr. Clement did not answer the justice's inquiry with a firm no,
prompting Justice Kennedy to inquire: "Can we say, or do you take the
position that a State must accept within its borders a person who is
illegally present under Federal law?" This time Mr. Clement answered: "I
think my answer to that is no." But he did not back up his answer with
either reason or conviction, resting Arizona's case on the sole ground that
the state has the constitutional right to help the federal government to
enforce federal law.
In contrast, General Verrilli boldly rejected Mr. Clement's basic argument
that the Arizona immigration law was nothing more than the state "aid to
Federal immigration enforcement," when as a matter of fact, "Arizona is
pursuing its own policy of attrition through enforcement and that the
provisions of this law are designed to work together to drive unlawfully
present aliens out of the State. That is something Arizona cannot do
because the Constitution vests exclusive --"
Before General Verrilli could finish his sentence, Justice Sotomayor asked
him to "answer Justice Scalia's earlier question...whether it would be the
Government's position that Arizona doesn't have the power to exclude or
remove ... from its borders a person who's here illegally." Given the
opportunity to finish his sentence, General Verrilli stated: "It is our
position [that] the Constitution vests exclusive authority over immigration
matters with the national government."
In response, Justice Scalia jumped back into the fray, noting, first, that
the constitutional grant of exclusive authority is over "naturalization
which we've expanded to immigration":
But all that means is that the Government can set forth the rules
concerning who belongs in this country. But if, in fact, somebody who does
not belong in this country is in Arizona, Arizona has no power? What does
sovereignty mean if it does not include the ability to defend your borders?
Undaunted, General Verrilli pressed forward, asserting that "the Framers
vested in the national government the authority over immigration because
they understood that the way this nation treats citizens of other countries
is a vital aspect of our foreign relations." Citing the import/export
provision in Article I, Section 10, Clause 2, Justice Scalia fired back:
The Constitution recognizes that there is such a thing as State borders,
and the States can police their borders, even to the point of inspecting
incoming shipments to excluded diseased material.
Thereafter, Justice Scalia and General Verrilli would clash several times,
with the general sticking to his claim of national exclusivity over
immigration as essential because of "significant real and practical foreign
relations effects," culminating in the general's calling attention to "
Mexico['s] central role in this situation," to which Justice Scalia retorted
Is that what you're saying?"
No doubt, Arizona's cautious approach was dictated by its decision not to
challenge what Justice Scalia described as what "we've" -- that is, the
Court -- read into the Constitution concerning the power of Congress over
immigration.
Our firm filed two amicus curiae briefs in the Supreme Court in this case
supporting Arizona -- one last September at the petition for certiorari
stage, and one this February on the merits. Our clients on these briefs are
U.S. Border Control, U.S. Border Control Foundation, Policy Analysis Center
, Institute on the Constitution, The Lincoln Institute for Research and
Education, Conservative Legal Defense and Education Fund, Gun Owners of
America, Inc., Gun Owners Foundation, English First, English First
Foundation, Virginia Delegate Bob Marshall, Oklahoma Representative Charles
Key, and Wyoming Senator Kit Jennings.
Our amicus brief in support of Arizona did what Arizona chose not to do --
explain the Founders' original constitutional plan.
First, we pointed out that the federal government's power over immigration
is not among those enumerated in the Constitution, but one that has been
grafted onto the "naturalization" power by the Court as a power "inherent in
sovereignty, and essential to preservation."
Then, we argued that as a nation of dual sovereignty each State, like the
national government, has the same inherent power of sovereignty, including
the power of self-preservation.
Third, we noted that while the national government's power was supreme in
the regulation of its international boundaries, the States' internal
boundaries remained in the power of the States.
Finally, we observed that, with respect to a state's internal boundaries,
Article IV, Section 2 and the Fourteenth Amendment expressly limited each
state's power as applied to citizens of other states and citizens of the
United States, but not with respect to citizens of foreign nations.
Justices Scalia and Kennedy's questions seemed to track our brief's line of
reasoning, asking whether Arizona had the power to exclude aliens who are
not legally in the country. If so, then Arizona's policy of enforcement by
attrition is perfectly permissible, General Verrilli's claims to the
contrary notwithstanding.
If Arizona has retained its inherent sovereign authority to defend its
internal borders, except as specifically limited by the Constitution, then
not one of the four contested provisions of the state's immigration law is
preempted by federal law.
First, the overall purpose of the law is constitutional in that it is
predicated on an incontestable "interest in the cooperative enforcement of
federal immigration laws ... to discourage and deter the unlawful entry and
presence of aliens and economic activity by persons unlawfully present in
the United States." Such unlawful presence threatens the integrity of
Arizona as a political and economic community, enhancing the risk of voter
fraud and decreasing economic opportunities for Arizona citizens and their
fellow Americans.
Second, sections 2(B) and 6 are designed to aid federal immigration
enforcement, and are in harmony with federal statutes as written by Congress
. Such provisions are not subject to pre-emption because Arizona's
priorities may differ from those of the executive department of the federal
government. Pre-emption can never be based upon the discretionary policies
of enforcement, as the Obama administration has argued here.
Third, section 3 of the law simply makes it a state crime not to comply with
the federal law requiring all aliens to carry an alien registration card.
This is not at all different from the state duplicating federal law
prohibiting bank robbery. Furthermore, the State has a sovereign interest
in identifying whether a person is a U.S. citizen because the Fourteenth
Amendment provides that every resident of the state who is a U.S. citizen is
, by definition, a citizen of the state.
Fourth, section 5(C), which imposes penalties on illegal aliens seeking
employment in Arizona, is consistent with the exercise of its police power
to preserve Arizona jobs for those persons who are lawfully part of the
state's economic and political community. While the federal law only
penalizes employers of illegal aliens, Arizona's interest in preserving jobs
for persons lawfully in the state is necessary to preserve the public
fiscal and the economic vitality of business within the state.
If the Arizona case is decided according to the measure of the Supreme Court
's jurisprudence in this area as argued narrowly by Arizona, the decision
could be very much in doubt. However, if the case is decided based on the
Founders' plan for a robust role for the states and a limited role for the
federal government, the decision should uphold the Arizona law.
Herb Titus taught constitutional law for 26 years, concluding his academic
career as founding dean of Regent Law School. Bill Olson served in three
positions in the Reagan administration. They now practice constitutional
law together, defending against government excess, at William J. Olson, P.C.
They can be reached at w*[email protected] or on Twitter @Olsonlaw. |
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