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calendar   Monday - June 25, 2012

Antonin, Still My Hero

Please try to find some time to read the SCOTUS decision on the Arizona immigration law, and think through what it means. And what precedents are being set here, such as Hey States, Screw You if We The Feds decide we’re no longer going to enforce one of our own laws because we don’t feel like it.

Selective application of the law, on the whim of a very small elite. Without support from the Legislative Branch, or their debating and nullifying such law. And with no riposte against such allowed by the Several States. Because now the Judical Branch has Said So.

How can this be construed as anything other than Tyranny?

Antonin Scalia, dissenting:

Today’s opinion, ap-proving 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 con- sider 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 ex-clude persons from its territory, subject only to those limitations expressed in the Constitution or constitution-ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty.
...
There is no doubt that “before the adoption of the consti-tution of the United States” each State had the author- ity 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 Constitu-tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.”

He writes how the States had power to exclude the unwanted way back at the beginnings of our nationhood, under the Articles of Confederation, and that this power was only “regulated” (ie evened out; it’s original contextual meaning) by a federal policy: it was not canceled.

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 ac-knowledgment of the States’ sovereign interest in protect-ing 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 abso-lutely 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.

And he keeps the timeline marching right along, dealing with the first Alien And Seditions Act (1798sh)

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.
...
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.”
...
Madison’s Virginia Resolutions likewise contended that the Alien Act pur-ported to give the President “a power nowhere delegated to the federal government.”

Yeah, that Jefferson. Old TJ himself. Founding Father #1. But let’s not pay any attention to him, because he owned slaves. And the selfsame James Madison, Founding Father #4. Another Dead White Male who can be ignored these days.

Fast forward to Mayor of New York v. Miln, 1824, and Scalia points out that SCOTUS in those days supported the State’s power of exclusion, because IT WAS BUILT IN:

“The power . . . of New York to pass this law having undeniably existed at the formation of the constitu-tion, the simply inquiry is, whether by that instru-ment it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” Id., at 132.
And the Court held that it remains.

One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so.

He traces the entire history of federal immigration law and authority, but reminds us that, just because a State has not exercised a Power in some time, that Power has not gone away

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so.
...
The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude.

and shows us the legal simplicity that such power can not be taken away willy-nilly - “field preemption”, aka “we have the power and you don’t because we’re doing it now” - but only by direct legislative action. And cites case precedent of course.

He then goes on to take the majority decision apart point by point and show the shortcomings in their reasoning.

And then he gets down to the heart of it:

What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.

Which means that the States have no recourse whatsoever if the Feds decide to not enforce one of their own laws ... and a pussy whipped Legislature does not immediately being impeachment proceedings for such deliberate lapse. Because not enforcing the law ... is against the law.

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern-ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.”

...

Now [ he’s still speaking of the original Constitutional Convention of 1787 ], imagine a provision— perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.

Because they would know that so wobbly and devious a clause would be a cloak for tyranny. And Alito knows it too. My hero.

Yeah, Rush has more.


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Posted by Drew458   United States  on 06/25/2012 at 07:58 PM   
Filed Under: • Judges-Courts-Lawyers •  
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