Justice Scalia: The Defining Characteristic of Sovereignty

Editors’ Note: The following is Justice Scalia’s opinion, partly concurring with, but mostly dissenting from, the majority opinion — in Arizona v. United States.

The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.


As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated:

“The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).

See also I R. Phillimore, Commentaries upon International Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1

There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132–133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I 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.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L.Rev. 1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration. 2 Id., at 1883.

In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254–276 (1964), but one of the Alien Acts 3 also aroused controversy at the time:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States. . . . ” An Act concerning Aliens, 1Stat. 570, 570–571.

The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act purported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Government’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.

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Cong. Quayle Fighting Obama’s Unconstitutional Power Grab

By Arizona Cong. Ben Quayle

President Obama is attempting to compensate for his lack of leadership with unprecedented assertions of personal power. He won’t work with Congress, so he’s decided to ignore it entirely.

I believe the debate that ensued after President Obama’s edict on immigration has glossed over the worst part of it: the fact that it was done without even the slightest input from the legislative branch. President Obama in effect declared that because he didn’t agree with the law, he wouldn’t enforce it. The constitutional implications are vast. What is to stop the president from ending the enforcement of other sections of criminal law, or for that matter, any part of the law?

The day after I sent you my last update, I flew back to Washington and introduced a bill to nullify this unconstitutional power grab. My bill, which has already picked up nearly 30 co-sponsors, would keep these policy changes from taking effect, and would bar the use of these kinds of power grabs in the future. I discussed my bill with Neil Cavuto on Fox Business Network, as well as Fox and Friends. Enjoy the clips here: Neil CavutoFox and Friends

I’ve told you many times in this newsletter about my work to hold the Obama Administration accountable for the tragic “Operation Fast and Furious.” The issue once again came to the forefront this week. Oversight Committee Chairman Darrell Issa has been pressing the Obama Administration to surrender subpoenaed documents on the operation, but Attorney General Holder has repeatedly stalled efforts to hand over the documents.

Because of this, Chairman Issa threatened to hold a contempt of Congress vote against Holder if the documents weren’t handed over by Wednesday of last week. Rather than comply with this legitimate Congressional investigation, President Obama declared that the documents would not be handed over by invoking executive privilege. Executive privilege exists to protect vital national security secrets, not to protect the President from the wrongdoing of his own administration. Once again, the President has abused his power in the worst way.

Chairman Issa responded by holding a contempt vote on the Oversight Committee, and it passed. House leadership has pledged to hold a contempt vote on the Floor of the House this week. This is just what I’ve been asking for the last several weeks, and I will eagerly vote to hold the Attorney General in contempt when the vote occurs. These continued abuses of power must not go unanswered, and the Administration’s attempts to avoid accountability must not continue.

Later in the week I introduced a resolution with my colleague Trey Gowdy of South Carolina calling for the appointment of an outside special counsel to investigate recent national security leaks to the news media. Senator McCain introduced a similar resolution in the Senate.

The New York Times and other outlets have recently written stories having to do with American cyber warfare programs against the Iranian nuclear enrichment program, the American anti-terrorism drone campaign and terrorists being targeted by our armed forces. The information leaked was highly-sensitive and classified. Many speculate that these leaks were made to bolster the national security credentials of the Obama Administration.

In response to the leaks, Attorney General Holder appointed two investigators to supposedly find out who was responsible. The problem is that, as members of the administration themselves, these investigators are faced with a blatant conflict of interest that will compromise their ability to properly carry out the investigation. One of them even donated $4,300 to President Obama’s campaigns. An investigation of this magnitude must be carried out by a special counsel with unquestionable objectivity. I hope the House will join with me in calling for this kind of investigation.

Cong. Franks: A Victory for Every State Struggling Under Burden Created by Derelict Government

Congressman Trent Franks (AZ-02) today released the following statement in response to the U.S. Supreme Court’s decision in Arizona v. United States, in which the court considered the constitutionality of SB 1070, Arizona’s immigration law:

“The Supreme Court today affirmed what proponents of SB 1070 have long held: that the core provision of the bill is not unconstitutional and, moreover, is in perfect keeping with current immigration law, which the Obama Administration has simply decided it’d prefer not to enforce.

“Today’s decision is a victory both for the state of Arizona and for every state struggling under the burden of a federal government that is willingly and shamefully derelict in their duty to control border crime.”

Cardon: Arizonans Wait for Solutions, Schizophrenic Government Waffles

Republican U.S. Senate candidate Wil Cardon issued the following statements on the Supreme Court’s decision on SB 1070:

“For years, the federal government and the Obama Administration have been too schizophrenic and too lax on issues critical to Arizona: Securing our lawless border with Mexico and stopping a massive wave of illegal immigration. Today’s unfortunate split decision on SB1070 opens the door to more of the same from Washington – more waffling, more inaction, more “back door amnesty.”

“The U.S. Supreme Court upheld the requirement that Arizona police officers try to determine the immigration status of those stopped or arrested and suspected of being in the U.S. illegally. That common sense requirement is a victory for the rule of law, though more lawsuits surely will come soon. However, even this silver lining is undercut by the Court striking down the state’s right to enact other key elements of SB1070, including making it a crime for illegal immigrants to work in Arizona.

“The bottom line: What Arizona needs on illegal immigration is what the Obama Administration, Congress and the Supreme Court have never provided. We need clarity when it comes to immigration law, a muscular strategy to secure our border and strong, determined action. The federal government and our elected leaders have failed on all counts – and now the highest court in the land has forbidden Arizona from fully taking over where Washington has failed.

“Isn’t that just typical Washington? Where we desperately need solutions, they make complex problems even more complex, waffling while Arizonans wait for answers and action. That’s sad and misguided, exactly like the Supreme Court’s decision on SB 1070 today.”

Grantham: Federal Government Negligent in Duty to Enforce Immigration Laws

Travis Grantham, candidate for Congress in Arizona’s 9th Congressional District released the following statement regarding the Supreme Court’s decision on Arizona’s immigration law SB1070.

“I stand with the United States Supreme Court in their decision to uphold the key provision in SB1070. It is a disappointment that the bill wasn’t upheld in its entirety however the heart of the bill which does the most to protect the citizens of Arizona was upheld. The Federal Government has been negligent in their duty to enforce our nation’s immigration laws. This ruling will set a precedent for other states to follow suit in their efforts to protect their citizens from the economic and security threats that illegal immigration poses.”

“On April 11, 2012 I visited the U.S.-Mexico border. What I saw was astonishing as it solidified my unwavering belief that we must secure our border first. Arizona’s open border is the lifeline to the illegal immigration problem our state faces. The Obama administration has failed to enforce our nations’ immigration laws. We must remember that it is not a right to become a citizen and live in the United States, it is a privilege.”

“Let this serve as a reminder as to why it is vital we send representatives to Washington D.C. who will fight for the will of the American people. If elected to Congress, I promise to stand with the people of Arizona in our ongoing effort to secure our open border.”

Congressional Candidate Adams: Court Decision Mixed

Kirk Adams Speaker of the AZ House on 1070

Kirk Adams is Speaker of the Arizona House and a candidate for Congress. He supported SB 1070 through his legislative work and defended it in numerous national news outlets after passage. Recently, Adams took part in a forum at the Heritage Foundation on SB 1070, and the state’s role in immigration policy.

Commenting on this week’s ruling, Adams said, “The Supreme Court’s decision is a mixed one. Immigration will continue to be a primary responsibility of the federal government but, as this decision confirms, state and local law enforcement have an important role to play. I am hopeful that Congress and the president will work to secure our border and create a functioning legal system that reflects our values of free enterprise and opportunity for all.”

Schweikert Recognizes Victory for Arizona

Congressman David Schweikert (R-AZ) issued this statement after the U.S. Supreme Court announced its decision on Arizona’s immigration law, Senate Bill 1070:

“I am heartened that the Supreme Court affirmed the heart of SB 1070, Section 2(B).

“The federal government has failed my state with its inability to properly enforce immigration law. Now Arizona, with the core of SB 1070, can implement what Washington has failed to do so many times.

“This is a victory for Arizona and our state’s right to defend our citizens and protect our borders.”

I didn’t think I could get more frustrated with the Obama Administration’s partisanship and overreach – until this week. In the space of a week, the President has declared that he will not enforce immigration laws and blocked the release of tens of thousands of documents related to “Operation Fast and Furious” by invoking executive privilege to shield himself and his Attorney General.

Conservative Leader John Acer Dies

John Acer, a long-time Republican Party conservative activist, died Sunday morning after a long, courageous battle with a rare blood cancer disease.

He had served many roles in the GOP, including precinct committeeman, state committeeman, district chairman, delegate to the Republican National Convention, and officer of the National Republican Assemblies,

John was a graduate of Princeton University Law School and a real go-to legal mind for worthy efforts. One effort was his role as legal counsel during the initiative process which established as Arizona law that those registering to vote had to show that they were U.S. citizens and show ID when they voted. John worked closely with former state Senator Russell Pearce and former Republican State Chairman Randy Pullen to insure this initiative became law.

John was a highly respected man in the Arizona community and will be missed by many.


Gov. Brewer: U.S. Supreme Court Decision Upholds Heart of SB 1070

Though conservatives statewide and nationally are expressing disappointment over the Supreme Court’s striking down three provisions and upholding one provision of Senate Bill 1070, Arizona Arizona Governor Jan Brewer today declared victory. The law is designed to uphold the rule of immigration law and was passed two years ago. But the Obama Administration sued in hopes of overturning it and  opening the borders. Gov. Brewer’s statement:

“Today’s decision by the U.S. Supreme Court is a victory for the rule of law. It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.

“While we are grateful for this legal victory, today is an opportunity to reflect on our journey and focus upon the true task ahead: the implementation and enforcement of this law in an even-handed manner that lives up to our highest ideals as American citizens. I know the State of Arizona and its law enforcement officers are up to the task. The case for SB 1070 has always been about our support for the rule of law. That means every law, including those against both illegal immigration and racial profiling. Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.

“The last two years have been spent in preparation for this ruling. Upon signing SB 1070 in 2010, I issued an Executive Order directing the Arizona Peace Officer Standards and Training Board (AZ POST) to develop and provide training to ensure our officers are prepared to enforce this law efficiently, effectively and in a manner consistent with the Constitution. In recent days, in anticipation of this decision, I issued a new Executive Order asking that this training be made available once again to all of Arizona’s law enforcement officers. I am confident our officers are prepared to carry out this law responsibly and lawfully. Nothing less is acceptable.

“Of course, today’s ruling does not mark the end of our journey. It can be expected that legal challenges to SB 1070 and the State of Arizona will continue. Our critics are already preparing new litigation tactics in response to their loss at the Supreme Court, and undoubtedly will allege inequities in the implementation of the law. As I said two years ago on the day I signed SB 1070 into law, ‘We cannot give them that chance. We must use this new tool wisely, and fight for our safety with the honor Arizona deserves.’”