On Monday, a majority of the US Supreme Court justices wrote that our constitutional system of federalism “adopts the principle that both the National and State Governments have elements of sovereignty that the other is bound to respect.”

In ruling against Arizona’s immigration law, however, that majority deprived the states of one of the most fundamental elements of sovereignty: the right to exclude from their borders persons who have no right to be there.

At issue in the case of Arizona v. United States were four provisions of an Arizona state law designed to curb illegal immigration, S.B. 1070. That law was explicitly constructed to complement federal immigration laws by authorizing state officials to enforce provisions of federal law.

All parties to the case conceded that, because the Constitution grants to Congress the power to “establish an uniform Rule of Naturalization,” the national government gets to decide who may lawfully be present in the country and to decide on the substantive rights and duties our laws will impose on aliens — that is, persons who are citizens of nations other than the United States.

Federal law already requires aliens to register with the national government and to carry proof of status on their person. Federal law already limits the number of aliens who may lawfully work in the United States and imposes criminal penalties on employers who hire unauthorized aliens.

The four controversial provisions of Arizona’s law were clearly designed with those federal regulations in mind:

* Section 2(B) requires its officers to check the federal immigration status of persons who were subject to arrest for other reasons.

* Section 3 made failure to comply with federal immigration regulations a misdemeanor crime under state law.

* Section 5(C) made it a crime under state law for unauthorized aliens to work or to seek work in the state.

* Section 6 empowered state law enforcement officers to arrest persons they reasonably believed to be subject to deportation under federal law.

Writing for a majority of the Supreme Court, Justice Anthony Kennedy invalidated Sections 3, 5(C) and 6, holding that they were pre-empted by federal immigration law, but held that Section 2(B) — derided by its opponents as the “show me your papers” provision — could in principle be enforced in a manner consistent with federal law.

No one who followed the oral argument should have been surprised that the court unanimously rejected the Obama administration’s position on Section 2(B). Federal law specifies that state officials need no special training or expertise to contact federal immigration officials to determine the immigration status of persons in their states, and federal law requires national immigration officials to respond to requests for information made by state officials about any person’s immigration or citizenship status.

When Solicitor General Donald Verrilli argued that Arizona had no right to make a systematic policy of consulting federal immigration officials when federal law explicitly requires those officials to respond to state inquiries, it was Justice Sonia Sotomayor who pointed out that his argument was “not selling very well.”

After all, Arizona’s law says that state law enforcement officials will accept an invitation only when explicitly extended to them by federal law.

The court’s majority, however, bought the rest of Verrilli’s argument. Essentially, they held that the national government has the exclusive right to decide both who has a right to live and work here and what to do about people who violate those rules.

The relevant federal immigration laws do not explicitly forbid states from enacting complementary statutes to enforce them, but the court held that the complexity of federal immigration law implied that Congress intended to forbid anyone but federal officials from trying to enforce them.

To this argument, Justice Antonin Scalia’s dissent offers a powerful reply. In an 1837 case that is a staple of introductory constitutional law syllabi, but which the court’s majority simply ignores, the Supreme Court held that nothing in the Constitution deprived the states of their inherent right, as sovereigns, not to admit within their borders persons who have no legal right to be there.

Scalia concedes that Congress would have had the right to enact a law explicitly abrogating the sovereignty of the states, so long as it expressed that intention unequivocally. But Congress has not done that.

Instead, the Court assumes away the inherent rights of the states to protect themselves against being invaded by a flood of unlawful migrants and to this injury adds the insult of pretending to acknowledge the existence of state sovereignty.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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