01 May 2012

A Supreme Conundrum

The Supreme Court will conclude one of its most significant and controversial terms in decades by taking on one more issue that has divided the nation: Arizona’s crackdown on illegal immigrants.
The court’s final oral argument on Wednesday — Arizona v. United States — provides yet another chance for the justices to confront fundamental questions about the power of the federal government. And the rulings the court will issue between now and the end of June could dramatically alter the nation’s election-year landscape.

I wrote about this legislation way back when it was passed (see: here) and I noted, among other things, that the Arizona law was primarily concerned with authorizing state authorities to enforce federal laws.  Leaving aside the debate over whether citizenship should be determined at the state or federal levels, and whether this sort of reverse-nullification is a good idea politically in the long run (for does not this legislation imply that the states are enforcers for the federal government?), the two relevant questions about the legislation are these:  1) are state authorities allowed to enforce federal law and 2) do the prohibitions on federal power extend to power exercised against non-citizens?

The first question is really a diversion, but I think that it is highly probable that SCOTUS will latch onto this because it dodges the more fundamental question of whether federal power is actually limited, and will make for an interesting political game among the judges since the options will be to a) support illegal immigration while decreasing federal authority over the states (which is an implicit support of the legal doctrine of nullification) or strike against illegal immigration by supporting an increase of federal power.

The second question is the better one, as it properly focuses on the extent of federal power.  This is actually a tricky question, as federal power is limited against (per the 10th amendment) “the people.”  Now, this begs the question of whether “people” refers to all humans, or whether it simply refers to citizens.  I would imagine that a strong case can be made for the latter, but I wouldn’t put it past the Court’s lefties to argue the former.  However, arguing this case is generally irrelevant since Arizona’s law has essentially codified the federal law at the state level, so even if the federal government weren’t able to exercise the power to track down illegal aliens, the states would certainly be allowed to, again per the 10th amendment, unless their state constitution or their citizens prohibited them from doing so.

Really, this case is pretty messed up, and brings to mind the old Law & Order saying:  “bad cases make for bad law.”  I have a feeling that this case is going to make for bad law.


  1. I don't yet understand why this is a bad case. Is it just because the Federal shouldn't be suing to stop its laws from being enforced? That seems like an ample reason to call it messed up, but I was wondering if there is something else you're getting at.

    Out of curiosity, is it widely known who enforced Federal laws in, say, 1800? Eliminating all the Federal law enforcement agencies that didn't exist back then leaves ... either nothing or a few US Marshals. Most of the law enforcement must have been done by county sheriffs then, not so?

    I am just wondering if this is going to be one of these times when the modern Supreme Court says "Oh, the framers were wrong about what the framers meant. They really meant ____, which means this historical practice has been wrong the whole time." I.e. the state church of Connecticut.

  2. @Olave- The reason why its a bad case is because there is no way to logically rule against illegal immigration and for states rights. Either illegal immigration is wrong and the states are subservient to the federal government (and are therefore authorized to enforce its laws) or illegal immigration is federal matter (and thus, practically speaking, legal) but states' rights remain relatively intact.

  3. Re: laws in 1800, understand that most federal laws applied to federal agencies to be enforced by the relevant bureaucrats. There weren't very many federal laws in the 1800s that applied to individual citizens. Those that did were generally enforced by the military.