The pissant dissents

Earlier in the day, I read and wrote up most of Scalia’s dissent in Arizona v. United States (pdf, Scalia begins on p.30), but before finishing I had to go out to feed some ducks and perform other important tasks like that, while the Interwebs tore it to pieces, so by now probably none of this is new to you. But what the hell.

He puts a lot of emphasis on states being “sovereign,” which my dictionary defines as “possessing supreme or ultimate power.” I’m pretty sure Arizona isn’t that. Anyway, being sovereign, it has “the power to exclude.” He quotes “Emer de Vattel’s seminal 1758 treatise on the Law of Nations” to support that. Again, though, Arizona is not actually a nation (it is a mental state brought on by too much time in the sun without a hat). Then he quotes I R. Phillimore, Commentaries upon International Law (1854), except, again, international law doesn’t grant Arizona the right to ban people or any other rights because Arizona isn’t actually a nation. I don’t know how this has escaped Scalia’s notice.

Actually, there’s a linguistic clue that he hasn’t: at several points he talks about Arizona “protecting its borders.” Plural. Thing is, it has borders, plural, with other states of These Here United States but only one, singular, international border. It can’t “protect” the former (although, as the resident of one of the states bordering Arizona, I gotta say to Jerry Brown: Build the danged fence!).

He notes that states in the 19th century passed laws restricting entry of convicted criminals, indigents, people with contagious diseases and freed slaves. Those are the precedents he cites, because he’s Tony Fucking Scalia. And presumably, since he’s citing these as positive precedents for his position on Arizona’s law, he believes that it’s okay for states to pass such laws again. If we now see a spate of Southern states passing laws banning entry by free negroes from other states, we’ll know who to blame.

Actually, he says that the federal government has not pre-empted the power of the states to exclude, that is, to decide on their own what foreigners to allow into their states.

He criticizes Obama’s recent decision not to deport certain illegal immigrants who came as children and says that the states are free to arrest and imprison those people themselves, because of their awesome sovereignty.

There’s some racist immigrant-fear-mongering that could not be more out of place in a Supreme Court opinion, including an accusation that Obama “leaves the States’ borders unprotected against immigrants” and puts the states “at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws”. Obama has tied Arizona to the railroad tracks and is twirling his mustache while waiting for the Messkin hordes to have their way with her. Scalia says that Arizona’s “citizens feel themselves under siege by large numbers of illegal immigrants”. They may or may not feel themselves “under siege,” but they’re not.

He concludes, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Okay, let’s.