Puzzling cite

Monday’s 5-3 decision in Arizona v. United States striking down most of Arizona’s immigration law has been well covered (see the on-line symposium hosted by SCOTUSblog).  But, I have not seen any coverage of a puzzling cite in Justice Scalia’s much-discussed dissent.  Justice Scalia would have upheld all of Arizona’s law, seemingly on the basis that states are sovereigns who have “power to exclude from the sovereign’s territory people who have no right to be there.”  Scalia viewed the law of naturalization as separate from the law of immigration and explained that Congress’s control over immigration did not need to be set forth as a separately enumerated power because a “sovereign nation” has inherent power “to forbid the entrance of foreigners within its dominions.”  To support this proposition, Scalia cited Article I, section 9, clause 1:  “The 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 [1808]…”  (slip opinion at 7).  The clause is one of a few in the Constitution that prohibited Congress from outlawing slavery before 1808.  Despite avoidance of the word “slave,” this is not a hidden meaning.  Why would Justice Scalia choose this pernicious cite to support inherent immigration authority for both the federal government and the states?  He cannot have intended to equate immigration with importation of slaves.  Thoughts?

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5 Responses

  1. Steven Lubet says:

    Well, he also cites Article I, §10, cl. 2, which provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.”

    Then he says, “This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods.” But of course, there is a big difference between people and “goods.”

  2. Joshua says:

    Another activist interpretation that is just flatly ignorant of original understanding. Typical.

  3. Joe says:

    The clause does imply that Congress has the power to prohibit “the migration” (does that apply to slaves, who would be “imported”?) of persons otherwise the exception would not need to be included.

    Scalia cited the practice of southern states blocking the entry of free blacks, so he was willing to “go there” when citing antebellum practice. I actually do think the clause does help justify federal control over immigration.

  4. nidefatt says:

    He doesn’t care about your feelings, he simply is pointing out that when the Constitution was written, it was evidently assumed states had control over migration. However, it also clearly stands for the proposition that the federal government could pass laws that would be controlling, but that prior to 1808, states would be able to avoid such control.

    In other words, Scalia’s clerk is not very smart. This should not be surprising after Scalia adopted the “broccoli” argument at the health care hearing. Hopefully his clerk leaves soon and someone with more integrity and ability takes his place.

  5. Joe says:

    What is the clerk reference all about? The first paragraph seems to say the cite is correct, but then perhaps for some sort of PC concern, it is akin to the stupid broccoli thing?