The Supreme Court today heard oral arguments about Arizona’s efforts to crack down on illegal immigration. That state’s law gives police officers the duty to check identification and take other steps to enforce federal immigration laws which, the state argues, the federal officers have left unenforced. The Obama Administration argues that this interferes with their discretion, but it’s hard to buy this argument, since the federal government has never repealed the laws in question or taken any official steps to alter how those laws are enforced. It’s just failed to do what it’s said it’s going to do. If state laws actually obstructed how federal officials acted, that would be one thing. But how can it be unconstitutional for states to offer help—even unwanted help—in implementing official federal policy?
The opposite side of this federalist coin is at issue in the Obamacare cases, in which states have taken efforts to resist federal acts they think are unconstitutional.
Several states have passed Health Care Freedom Acts (Arizona put it in their Constitution) around the time that Obamacare was enacted. These laws guarantee an individual’s right not to be forced to buy health insurance if that person doesn’t want to. After passing its law, Virginia filed a lawsuit asking a federal court to determine whether it is constitutional. The Fourth Circuit Court of Appeals threw that case out, holding that the state lacked standing. As I explained in this post, that decision was probably wrong, and the Supreme Court has chosen to put that case on hold while it considers the Florida case. But the Florida case involves the same issue—the state has asked the Court to reconsider its old precedent, Massachusetts v. Mellon, and clarify when states can and cannot sue the federal government in what lawyers call the “parens patriae” capacity—that is, when the states can defend their citizens’ individual rights against overreaching federal authority.
States have often taken steps to resist federal acts with which they disagree—including, in the extreme cases, such unconstitutional and misguided efforts as “nullification.” But while nullification is wrongheaded, we should not be led in the opposite direction to think that the federal government is all that matters. States play a critical role in balancing against the federal government’s tendency to grab power it doesn’t lawfully possess. As James Madison explained, the Constitution creates a “compound republic” in which the states will work as vigilant guardians of their own prerogatives and against Washington D.C.’s efforts to aggrandize power to itself.
That’s why it’s so unfortunate to see SCOTUSBlog’s Lyle Denniston mischaracterize Justice Scalia’s point in this morning’s oral arguments. Justice Scalia asked whether states have the power to close their borders to persons who have no right being there—that is, to people whose presence in the state is not protected by any federal legal authority. Denniston calls this proposition “radical,” and describes it as meaning that states could “craft their own immigration policies,” but states have this power under the Constitution. The Tenth Amendment reserves to states all powers that the Constitution does not otherwise take away from them, and the Constitution does not take this power away. Yes, American citizens have a constitutional right, under both privileges and immunities clauses, to travel state to state without discrimination; yes, states have no right to choose their own citizens, and must treat all persons within their jurisdiction equally within appropriate parameters. But nothing in the Constitution forbids the state from refusing entry to whomever they like so long as that choice does not infringe on any federal law or constitutional provision. And illegal immigrants do not enjoy any such free pass. On the contrary, their presence is already a violation of federal law, and until Congress forbids states from acting, the states can choose to deny such persons entry if they wish. Whatever one thinks about federal immigration laws, Justice Scalia is right about the Constitution.
Throughout the twentieth century, federal power expanded at an astonishing rate, at the expense of state governments. In some ways, this was wise—federal civil rights protections were one of this nation’s greatest political accomplishments. But in many other ways, it was foolish: one need look no further than Medicaid—also at issue in the Obamacare cases—or the No Child Left Behind Act to see how centralization can cause not only bad policies, but a vacuum of accountability that makes reform next to impossible—and deprives states of the power to fight back to improve the lives of their citizens. Yes, states can go too far sometimes. But it is important not to forget the critical role that states play in our constitutional order—and that the Tenth Amendment guarantees. Arizona, like Virginia and Florida, are acting well within their authority when resisting federal laws that they oppose. The tension between states and the federal government is a centerpiece of our constitutional scheme and essential to protecting individual freedom.