Arizona is beleaguered by an illegal alien population larger than the size of any colony when the Constitution was ratified. Yet the state is completely prevented by puny lower courts from protecting its self-determination (sovereignty). At the same time, the island state of Hawaii, under our misguided and corrupt conception of the federal judiciary, has the ability to violate the self-determination of the entire nation and demand that the federal government bring in unlimited number of immigrants from the Middle East.
Turning state sovereignty on its head
Once again, the Justice Department found itself in the palace of the Ninth Circuit this week defending national sovereignty on an issue that should never have come before a court. Given that national sovereignty and immigration statutes no longer have meaning, the three-judge panel haggled with plaintiffs and the DOJ during oral arguments not over the law but over the meaning of the Supreme Court’s edict to allow in anyone with “bona fide” ties to America from countries included in the immigration moratorium order.
In July, the six liberal justices on the Supreme Court refused to stay the temporary injunction of Judge Watson, who ordered the administration to allow in all brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins not only of citizens but even of immigrants residing in America. SCOTUS kicked the decision back to the Ninth Circuit, which dealt with the issue during Monday’s hearing. But there’s one important detail that has been lost in the circus of judicial supremacy and stolen sovereignty: the lead plaintiff in this case is the state of Hawaii. How can a state get standing, much less win on the merits, to require the federal government to bring in more immigrants than it desires in order to satisfy a state?
Which brings us to Arizona.
For years, the federal court system has tampered with every effort by Arizona citizens to deal with their systemic problems caused by illegal immigration. Every commonsense law enforcement initiative, voting integrity law, and financial protection act was “struck down” by the wacky district judges and the Ninth Circuit. The courts said over and over again that the federal government has so much power over immigration that a state can’t even independently complement or enforce immigration laws.
Yet now the courts are saying states can demand more immigration and even strong-arm the plenary federal power over immigration to do so. They have flipped sovereignty on its head — upside-down, inside-out — narrowly interpreting sovereignty as the least common denominator of the desire to restrict between the federal and state governments rather than the greatest common factor of each one’s desire to protect its own sovereignty.
Which brings us to Justice Scalia.
Nobody explained this concept better than Scalia, in his dissent in Arizona v. U.S. on the state’s 2010 immigration enforcement law, S.B. 1070. But first some background on S.B. 1070.
S.B. 1070 had four major provisions: It made illegal immigration in Arizona a state crime, made it a misdemeanor for an illegal to seek employment in the state, authorized warrantless arrests of those suspected of being here illegally based on probable cause, and required law enforcement to make a reasonable attempt to ascertain the immigration status of those lawfully detained when there is reasonable suspicion to believe they are here illegally.
District Judge Susan Bolton invalidated all the provisions, as did the Ninth Circuit. The Supreme Court “struck down” the first three provisions, but upheld the provision requiring law enforcement to check immigration status.
Scalia would have upheld all four provisions, and in his mind, it wasn’t even close. Arizona was the victim, while the lawless courts and their allies in the legal profession were the aggressors.
Scalia began his dissent by noting that states have complete sovereignty over their territory unless their acts are specifically and directly barred by the federal government:
Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.
He went on to prove how the Founders and early political leaders gave immigration policy to the federal government in order to protect the sovereignty of the states, not violate it:
In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.
Thus, both the Constitution and the inherent right to sovereignty rooted in social compact theory dictates that federal control over immigration should primarily be in one direction: more restrictive than states would want, not less restrictive. Now, obviously, once the feds were given final say over immigration, the letter of the law dictates that states cannot prevent immigrants from settling within their borders where statute otherwise authorizes it. However, as Scalia noted, a state “has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition,” and in this case, “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.”
Yet, over the past decade, Judge Susan Bolton and several other leftist judges have stolen the sovereignty of the state and voted down, like a super-legislature or an executive veto, every commonsense measure that passed either via state law or ballot initiative. She overturned an anti-smuggling law in 2014 as well.
In 2006, 77 percent of voters approved Arizona Proposition 100, which denied bail to illegal aliens charged with “serious felony offenses.” After this measure was “struck down” by the Ninth Circuit, the Supreme Court refused to hear the case. In dissenting from the denial of certiorari, Thomas and Scalia were furious. “Our indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds,” wrote Thomas.
Returning to the Ninth Circuit case involving Hawaii, ponder for a moment the astonishing hypocrisy of courts upholding federal powers over immigration to such an extreme that states cannot even complement federal laws, while at the same time, states that want liberal immigration policies can directly veto federal laws. Further juxtapose this with the growing list of lower courts that are not only upholding sanctuary laws but mandating sanctuary cities by preventing states and localities from cooperating with ICE detainer requests.
The rulings of these lower, Congress-created courts, which overturn immigration law, popular sovereignty, the social compact, and settled case law stating courts have no jurisdiction over immigration, are now considered the law of the land.
The forgotten man of Arizona
What about the forgotten man of Arizona who never violated any law? Take heed of what Scalia wrote at the end of his partial dissent in Arizona v. U.S., universally heralded by conservatives and libertarians:
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.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.
There is something fundamentally wrong when lower court judges can destroy our heritage, values, and sovereignty and twist the Constitution and natural law in the most grotesque fashion without facing any reprisal, check, or balance. There is something fundamentally wrong when people delegitimize the pardon of one sheriff — whether you agree or disagree with Trump’s decision — but unquestionably support the de facto judicial pardons of millions of illegal aliens, including some of the most violent ones, even though courts manifestly lack such power. Moreover, Obama illegally “pardoned” (plus gave affirmative benefits to) 900,000 illegal aliens, including the likes of Salvador Diaz-Garcia, who allegedly raped a 19-year old American and broke almost every bone in her face, and yet the courts are using those illegal pardons as a cudgel against Arizona.
Scalia posed the following question at the end of his epic dissent, addressing the political problems of stolen sovereignty at the hands of a lawless executive. The same applies today to the lawless judiciary:
Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?
With polls showing Arizona’s junior senator, Jeff Flake, down by as many as 26 points in his primary against Kelli Ward, an unprecedented position for an incumbent, it’s very possible that the people of Arizona are ready to answer this question.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.