The harrowing pronouncement Scalia would make about President Trump’s authority to secure our own border

· June 11, 2019  
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Antonin Scalia
Alex Wong | Getty Images

What does sovereignty mean if it does not include the ability to defend your borders?” ~Justice Antonin Scalia, April 25, 2012, Arizona v. U.S. (oral arguments)

President Trump seems to have been given the impression that he has no legal options to secure our border, no matter how rapidly the situation deteriorates, so that he feels he must get Mexico to secure our border for us. Given that this entire crisis was spawned by California judges, it might be worthwhile to go back and explore what a real judge said about national sovereignty.

In 2012, when the border crisis was a fraction of today’s magnitude, Justice Scalia believed that even a state like Arizona had the right to enforce its sovereignty and not allow in illegal aliens, despite the loose policies of the federal government. When he asked Obama’s solicitor general during oral arguments in Arizona v. U.S., “What does sovereignty mean if it does not include the ability to defend your borders?” he was referring to even Arizona’s right as an individual state to defend its own borders. “The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material,” said Scalia during litigation between the Obama administration and the state of Arizona. He never could have imagined we’d be debating the federal power to secure the border of the entire union.

Scalia was so passionate about even state sovereignty as held against illegal immigrants that he read his partial dissent in the case from the bench when the decision was announced on June 25, 2012.

“But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government 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?”

Now we have a president who wants to enforce our laws, yet carefully shopped district judges are saying otherwise. Could anyone have imagined, not just a state, but the entire federal union “at the mercy of” a lower court judge’s refusal to recognize this nation’s immigration laws and its own long-standing judicial precedent on staying out of questions of entry at our border?

Remember, Scalia referred to a state’s ability to regulate docking ships in order to prevent diseases, even though it crosses into federal jurisdiction. That’s how paramount sovereignty is. How can we all agree now that even the federal government can’t block people with suspected diseases and all sorts of security problems from coming in? How have we allowed this to go on for over a year without challenging this premise?

Scalia rhetorically asked, “Now, 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.”

Now, we have an invented provision in our body politic, which this administration refuses to push back on, that goes something like this: “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the district judge of the ACLU’s choosing deems appropriate.”

Scalia ended his dissent discussing Obama’s amnesty and Arizona’s response to it:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Scalia conceded, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

That was when the situation was not nearly as dire as it is today. That was when we were beginning to experience the “bring a child and you are in” wave that we are now suffering from today. Indeed, it’s quite clear that things have gotten bad enough for states like Texas to have the authority to turn back migrants across the river. The fact that we are not even acting on the federal power to do so demonstrates the end of America as a sovereign nation.

When announcing a complete shutoff of all immigration requests and immediate inadmission of all migrants who show up without proper documents, Trump should echo Scalia with an even stronger qualifier and say, “If securing its territory in this fashion is not within the power of the FEDERAL government, we should cease referring to our entire nation as a sovereign union.” And if he declines to do so, Texas Gov. Greg Abbott should give the speech verbatim for him.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.