RUTHFULLY YOURS

I appreciate Heather’s kind words and her thoughtful response to the points I raised in challenging one argument she made in the course of dismantling Judge Susan Bolton’s ruling on the Arizona immigration law. Heather has good cause to be unsure of how today’s federal courts will resolve the preemption question she posits — in a nutshell: Can a state, consistent with the Constitution, enforce a state-law immigration penalty that is consonant with federal statutory law but contravenes a presidential policy of non-enforcement? My confident assertion that a state can do so is based on my understanding of the Constitution’s division of federal and state power, rather than on how the whimsical federal courts may choose to “evolve” that division.

As Heather suggests, I do draw a bright line between executive enforcement policy (which is politics) and congressional statutes (which are law). On this point, the foundational disagreement I have with Heather is about the Constitution. Heather writes: ”In so exercising his discretion, a president has not entered into some extra-constitutional ‘political’ territory, as Andy seems to suggest; he is operating within his constitutional legal powers.” Respectfully, I think this misinterprets the Constitution, which is foremost a political document, not a legal one.

The Constitution enumerates and divides the political powers of the federal government, reserving to the sovereign states and the people all rights and powers not expressly vested. The fact that the president’s powers stem from the Constitution does not, as Heather infers, mean his exercise of them is a “legal” act; nor does that exercise’s political nature make it “extra-constitutional.”

When, for example, a president commits U.S. armed forces, as the Constitution empowers him to do, in contravention of a statute (e.g., the War Powers Resolution), the federal courts refrain from deciding the dispute because it is a “political question.” Yes, I suppose it can be said that the president is legally the commander-in-chief, and that Congress has followed its legal procedure for passing a law, but the controversy does not therefore become a legal one fit for judicial resolution. It remains a political one to be decided at the ballot box. And, to take another example, one of the main checks given Congress on abuses of executive power is impeachment, which is a political remedy, not a legal one — even though there is a legal process for carrying it out.

The fact that law has no existence absent the discretionary decisions that attend its enforcement does not make those decisions any less political or any more legal. Law defines what we can do; within those parameters, what we choose to do is a political call involving resources and policy priorities. Heather asserts that a law-enforcement decision to refrain from enforcing a law is “as much a part of the law” as the enactment of the law by the legislative process. I don’t agree. After all, try running that in reverse: If there is no statute, law enforcement has no decision to make — if it tries to enforce that which Congress has not enacted, that is a violation of law. Moreover, if the public is unhappy that the cops are pouring out the Colt 45s instead of arresting the loiterers, that can be a major political issue even though there is no legal recourse over the failure to enforce the law. Mayor Rudy Giuliani won reelection going away largely because New Yorkers liked his stepped-up enforcement policy on petty offenses, which reduced overall crime and improved quality of life.

Perhaps because I see the Arizona situation more as a political one than a legal one, I come at it from a different angle. The nation is built on a political power-sharing arrangement in which the states maintained their sovereignty while surrendering certain powers to the national government. Two important things flow from this.

First, the states are sovereign. That is not just a slogan, it is a concept that has real meaning. Inherent in sovereignty is the natural right of self-defense. If states are no longer at liberty to protect their territories and defend their citizens, they are no longer sovereign, and the social compact on which the nation is based is broken.

Second, the presumption in our system is against the forfeiture of rights and powers. The Constitution expressly provides that unless a power has been delegated to the federal government, it is retained by the states. Our law holds that individuals are not deemed to forfeit their fundamental rights unless there has been a waiver that is clear, knowing, and voluntary. I don’t see why sovereign states would rate any less deference. This is critical because (a) the Constitution does not delegate the power of immigration enforcement to the national government (the power to set terms for naturalization, which is federal, is not a power over immigration enforcement), (b) the power to regulate immigration was understood to be retained by the states, as a core part of their police power, for the first century-plus of our nation’s history, and (c) the states have continued to exercise this power and have never forfeited it. In point of fact, until the turn of the 19th century, the pertinent question was whether the national government had any power over immigration enforcement (Jefferson, for example, was quite certain it did not). It was federal power that was dubious; state power was unquestioned. See, e.g., Joseph Baldacchino, “Regulation of Immigration Historically a State Function” (National Humanities Institute, July 19, 2010).

To me, this is the necessary context for any consideration of a federal attempt to prohibit the exercise of state police power within a state’s sovereign territory. Such a prohibition should not happen unless there is a clear constitutional mandate — i.e., an unambiguous indication that the states delegated the power in question to the federal government or that the state’s exercise of the power interferes with some federal right clearly protected by the Constitution. This is what the Supremacy Clause stands for.

Like most judicial inventions, the preemption doctrine, which is the root of my narrow disagreement with Heather, started out harmless enough: holding that where there is a clear delegation of power to the federal government the states either may not act at all (as in the power to coin money or establish a uniform rule of naturalization), or may not act in a manner contradictory to federal law. But here is the problem: judge-made federal law, particularly in constitutional jurisprudence, often becomes nothing more than a gussied up power-grab: either the judiciary usurps the powers of the other federal branches, or the judiciary is the means by which the federal government usurps the power of the states — with the federal courts becoming more powerful because they get the last word. (Heather’s insightful discussion of De Canas v. Bica testifies to the unpredictable willfulness and shifting politics of judicial decision-making.)

I don’t see how it could be credibly disputed that federal immigration enforcement is the result of a judicially led power-grab. Have a look, for example, at this paper on federal immigration regulation from the (sympathetic) University of Minnesota’s “Human Rights Library.” In the course of trying to overwhelm the reader with the purported plethora of sources of federal power in this area, the authors unintentionally undermine their case. They are forced to concede that ”in the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government’s exclusive and plenary power over immigration.” Well, yeah, it’s not easy to identify something that isn’t there.

So what happened? What usually happens: the Supreme Court began rationalizing — umm, maybe we can find it in the naturalization power; or the power to regulate foreign commerce; or the power to conduct foreign affairs; or the war power; or the power to maintain armies and navies; or the power to punish piracy and crimes on the high seas; or to impose import duties; or to codify offenses against the law of nations; or to appoint foreign diplomats; or the Migration and Imporation Caluse (art. I, sec. 9, cl. 1). If none of that sounds too compelling, there’s always the “necessary and proper clause” — a convenient catch-all: When a court can’t directly justify federal action by some enumeration of authority, it contends the action is derivatively justified as necessary to the exercise of some purportedly related enumerated power (often without a very convincing explanation of why power A not only implies power B but that the states understood this and thus clearly delegated power B).

Over time (in this case, over more than a century), this dizzying exercise devolves into judicial ipse dixit. So it was, the UMinn authors conclude, that in 1899 the Supreme Court, in the so-called Chinese Exclusion Case (Chae Chan Ping v. U.S.), “eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles.” The concept of national sovereignty suddenly made the federal government preeminent — and never you mind that (a) in our system, the states are also sovereign, (b) the states had been regulating immigration since the Constitution’s adoption, and (c) most things that are clear, “absolute and unqualified” don’t take 110 years to discover.

Which is to say, this was a fabrication — and one, it’s worth pointing out, that Arizona did not challenge. In the case before Judge Bolton, the state did not contest federal supremacy over immigration enforcement within Arizona’s borders. That calls into question whether the issue would properly be before the Supreme Court if the state fails to raise it as the litigation goes forward. (In my mind, it’s strictly a legal question that doesn’t require development of a factual record, so the state should be permitted to raise it in the Ninth Circuit.) Heather is quite right that where the courts will come out on preemption is an unknown. After all, those same courts, having started with a situation in which state enforcement was a given and federal enforcement was questionable, have willed us to our current straits, where we are to believe that the opposite is true.

But that’s not the way it should be. In 1837, the Supreme Court (in New York v. Miln) upheld a state law that allowed New York City to expel arriving aliens it “deemed” likely to become a public burden. As Justice Philip Barbour explained, the state had acted

to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so. [Emphasis added.]

There is no good reason why what was true in 1837 should not be true today. Even if we accept, for argument’s sake, that the courts have discovered and justified federal powers to enact and enforce immigration laws, there is no reason that should vitiate concurrent, sovereign state authority — authority that existed before the putative federal authority, that the states have never delegated (and therefore retain), and that, in the Arizona instance, is actually consistent with pertinent federal law.

A couple of final points. Heather assumes there is a “federal interest in speaking with a single, national voice when it comes to immigration matters.” As a matter of law, if there is such an interest, I’d argue that this is a recent development in our jurisprudence. As a matter of fact, I’d contend that there may be a federal interest (i.e., the interest of the federal government, which wants to control the area) but there is no national interest. The country is divided on immigration, as we are divided on many things, and that’s fine as long as every state is not burdened by the choice of individual states not to enforce the law.

While Heather is troubled by the prospect of different states having different prosecutorial regimes for immigration, that is the way it is on many issues (drugs, guns, etc.) and it is the way it has always been on immigration. As related in the Baldacchino paper I cite above, in the so-called Passenger Cases (1849), the Court discussed the distinction between the naturalization power, which is federal, and immigration enforcement, which was a state matter. Chief Justice Roger Taney (in a dissenting opinion) argued that it was obvious that the naturalization power had been delegated to the feds because otherwise, under the privileges and immunities clause, a single state could determine for every state “what foreigner should become one of its citizens, and be entitled to hold lands, and to vote at its elections.” The court clearly assumed that different states would continue to enforce different enforcement standards.

Finally, the Supreme Court has recently been deferential to the power of states to enact and enforce law in the face of a claim that this power was trumped by the president’s capacious authority to conduct foreign affairs.

In Medellin v. Texas (2008), President Bush attempted to force Texas to vacate a Mexican national’s capital murder conviction because the state had failed to comply with the Vienna Convention obligation to allow the defendant to contact his consulate — even though the defendant had failed to make a timely Vienna Convention claim under state law. The Supreme Court held that the state’s power to enforce its valid laws was not overcome by the president’s foreign-affairs authority or his power to take care that the laws be faithfully executed. Congress had not enacted any statute that contravened state law, and the justices were not persuaded by claims that the state law frustrated the president’s ability to enforce a uniform national standard in an arena — foreign policy — where presidential power is immense.

There is a colorable argument that our jurisprudence has created a federal immigration-enforcement role that the Constitution did not make entirely clear. There should not be a credible argument that the states are precluded from enacting immigration laws that are consistent with congressional statutes.