Winning the Case, Losing the Principle
Arizona won, but the sovereignty of states suffered a setback.


Andrew C. McCarthy

Don’t hold your breath waiting for the most politicized Justice Department in American history to drop its imperious lawsuit against the people of Arizona — those impertinent subjects who dare to demand enforcement of the immigration laws Pres. Barack Obama deems null and void.

It is true that this week, in upholding Arizona’s sanctions against employers who hire illegal aliens, the Supreme Court implicitly undermined the preemption-by-executive-fiat theory underlying the administration’s suit. By a 5–3 majority (with Justice Elena Kagan, Obama’s former solicitor general, having recused herself), the Court held that a state is not barred from enacting laws that are consistent with federal statutes and bolster congressional purposes. That is to say, the touchstone of preemption remains law, which is what Congress prescribes, not policy, which is a president’s political calculation about what laws to enforce or not enforce.

That ought to spell doom for DOJ’s civil-rights case against Arizonans, who are doubly afflicted by a federal government that taxes them to support agencies that first refuse to protect them and then haul them into court for trying to protect themselves. The state’s controversial immigration-enforcement law (known as “Senate Bill 1070”) actually strengthens federal laws that bar aliens from entering and remaining in the United States illegally. Given the justices’ apparent enthusiasm for state statutes that support and bolster federal statutes, one might think Attorney General Eric Holder would read the writing on the wall and call off his minions.

He won’t. Obama’s tyrannical preemption theory is damaged by Thursday’s ruling in Chamber of Commerce v. Whiting, but it is not destroyed. Nor is that the lone cause for disappointment — far from it. While the Court’s bloc of progressive activists lost this skirmish, they’re winning the federalism war in a rout. Whiting leaves in tatters the concept of state sovereignty, federalism’s bedrock.

For that, Arizona can place much of the blame on itself. Chief Justice John Roberts’s majority decision boldly asserts that the “power to regulate immigration is unquestionably a federal power.” Arizona has mounted no meaningful resistance to this proposition, neither in Whiting nor in the ongoing litigation over the more hotly disputed Senate Bill 1070. Thus, it is perhaps to be expected that this is the one point on which all nine of the Court’s justices seem to be in agreement.

Chief Justice Roberts’s assertion is untrue, at least insofar as it implies federal supremacy over the question of immigration. As I’ve previously contended, there is nothing in the Constitution that vests the federal government with the power to police illegal immigration within the territory of a state. To the contrary, the Constitution empowers Congress merely “to establish an uniform Rule of Naturalization,” i.e., to prescribe the qualifications for American citizenship. It says nothing about how those standards are to be enforced. In adopting the Constitution, the states did not delegate to the national government their inherent authority to police their territory, to defend their citizens, and to detain persons who have no lawful right to be on their soil.

In the debates over the adoption of the Constitution, such leading proponents as Hamilton and Madison assured the wary states that they would retain control over the administration of justice within their territories. The federal government’s concerns would be limited to such “external objects” as “foreign commerce.” The states would continue to focus on those “internal objects” that “concern the lives, liberties, and property of the people,” including the “internal order of the state.”