« Lee Strang: Why Originalism Needs the Virtues
Michael Ramsey
| Main | A Further Comment from Jeffrey Love on Executive Non-Enforcement
Michael Ramsey


Inherent Powers and Justice Scalia's Arizona Opinion
Michael Ramsey

Mike Rappaport comments that Justice Scalia, in the course of his dissent in Arizona v. United States, appears to find federal power over immigration as an inherent power of sovereignty derived from international law.  From the dissent:

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States.  As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’”  Fong Yue Ting v.  United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)).  That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

Professor Rappaport says:

Sorry, but that is inconsistent with Scalia’s principles and he should know better.  What international law says about the United States is not the relevant question, as Justice Scalia has often stated.  If the federal government had a general power over immigration, it would have been listed as an enumerated power.  And the Tenth Amendment confirms that.

I agree.  I'm sorry to see Scalia seduced by the extra-legal idea of inherent powers (which, once accepted, can be stretched to include all sorts of things one might like the national government to do but don't fit comfortably within the enumerated powers). 

I'll add one further point. Scalia is wrong about international law.  It's true that eighteenth-century international law saw exclusion of aliens as an attribute of sovereignty.  But in the U.S. system the national government is not the exclusive sovereign (as Scalia surely believes -- indeed, that's the central point of his dissent).  The national government has a share of sovereignty, the states have a share of sovereignty, and ultimate sovereignty rests with the people.  Thus the people can, via the Constitution, distribute sovereignty in any way they wish.  They could, for example, by constitutional amendment prohibit the national government from adopting any restrictions on immigration.  (In fact, the Constitution did so, prior to 1808, in the clause Justice Scalia himself cites).  That would not make the United States less sovereign from an international perspective, although it would mean that its national government couldn't exercise one of the common rights of sovereignty.  International law has absolutely nothing to say about the internal allocations of sovereign power within a nation.