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A Landmark Non-Decision

In February, the Supreme Court declined to hear the cases of Hazleton, Pennsylvania and Farmers Branch, Texas late last month. They should, of course, never have gotten as far as they did. That is to say, the Supreme Court of these United States should never have even been petitioned to add these cases to its docket in the first place, so out of touch were the appealing parties with the most basic Constitutional principles, beginning but not ending with the preemptive authority of federal law under the Supremacy Clause. Not to mention that the ordinances attempted by these townships were an open invitation to racial profiling on a grand scale.

In the Pennsylvania case, the city of Hazleton sought, among other things, to criminalize the action of a landlord who rented an apartment to an undocumented alien. As usual, the city feebly tried to invoke the old “we’re only trying to help” argument by insisting that it was merely assisting the federal government in enforcing the federal immigration code, i.e., that it was appointing itself deputy to Immigration and Customs Enforcement. (So what if their help was never solicited.) In the writ petitioning the Supreme Court to reverse the rulings of the lower courts, the city also claimed undocumented aliens as singularly responsible for crime (“including murder”) and apartment overcrowding. How weird is that? The claim actually suggests that city ordinances should accredit willful stereotyping in the conduct of law enforcement. (Nice. No Constitutional issue there.) I won’t go into the details of the similar case of Farmers Branch, Texas which is even more egregious in its flouting of federal prerogatives than that of Hazleton.

It might strike as odd, but I feel more a sense of relief than the urge to applaud the Supreme Court’s decision to deflect these cases. The ordinances in Hazleton and Farmers Branch were so nasty and hair-brained that they never should have gotten to the point where the Supreme Court had to waste whatever time and microns of ink it expended on the formalities of refusing to hear arguments in their defense. It would have made for a sorry state of affairs if our highest court had seriously considered debating these cases. However, that I feel relief rather than pleasure is a measure of the conduct of justices that gave us Citizens United and the gutting of the Voting Rights Act.

At the same time, I also feel a little deprived. For one thing, the infamous Arizona law, SB 1070 did reach the Supreme Court docket, despite having featured an analogous attempt by a state to legislate its own immigration enforcement code in defiance of the Supremacy Clause. The law was largely, but not entirely struck down; the “papers please” clause survived. And unlike the Hazleton and Farmers Branch cases that were turned away without comment, the individual justices in Arizona v United States had to let us know where they stood. Antonin Scalia’s dissent was particularly enlightening. To wit: “The most important point is that, as we have discussed, 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…[T]here is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.”

Really? Arizona can have its own immigration policy? I recommend you peruse Justice Scalia’s entry into the annals of our Supreme Court yourself. It makes for fascinating reading. However, assuming you have better things to do, I’ll point out two salient features of Scalia’s presentation.

One, he appears to adopt without critical analysis Arizona’s claim that the Federal government has been derelict in enforcement: “[Arizona’s] whole complaint…is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.” So, Scalia postulates that federal immigration enforcement has been “lax,” despite much evidence to the contrary, not the least of which skyrocketing numbers of deportations. In short, he bases his argument on a demonstrably shaky – to speak courteously – assumption.

Second, Scalia travels well beyond the consensus view of States’ rights to highlight immigration control as a dominant feature States’ sovereignty. “Notwithstanding ‘[t]he myth of an era of unrestricted immigration’ in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only pro­vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.” The states, I would submit, did LOTS of things in the first hundred years of our glorious history we currently deem not so glorious, including some Scalia invokes himself. Interpretation of the Constitution and readings of the history of its application have gradually delineated federal from state prerogatives. It seems rather strange and retrograde for a Supreme Court justice to suggest that immigration law should yield to an aggrandized view of state sovereignty, and revert to a period when immigration restrictions were engineered to exert forms social and ethnic control we would all find abhorrent today.

I submit all this detail on a settled case not to revisit it, but rather in order to illustrate why I feel simultaneously both relieved and cheated by the summary demise of Hazleton and Farmers Branch. With a divided court (Arizona went down on an 8 to 3 vote, with Justice Kagan under recusal), it is always useful to know how close to danger we might come, and to gauge how future attempts by states’ to usurp federal authority might fare. As I have written before, public attitudes toward immigration fluctuate with the economic cycle (not exactly an earthshattering discovery), and these attitudes can leach into policy…and court decisions. With Hazleton and Farmers Branch DOA, we will never know if the Supreme Court’s demurral was consensual or disputed, nor what opinions and dissents might have transpired.

Again, I’ll be the first to scream from the rooftops that the failure of these cases to advance to the Supreme Court beats by miles the alternative of seeing such offensive ordinances graced by the attention of our highest court. Nevertheless, my interest in the views of justices, in particular dissenting ones like Scalia’s applauding the notion of state jurisdiction over immigration, is not driven by idle curiosity alone.

One of the most eye-popping aspects of immigration enforcement is a doctrinal tenet with no grounding in any Constitutional commandment. Yet this precept has been all-powerful in the formulation of immigration law and practice. It is know as “plenary power” and has a very specific genesis in a pronouncement embedded in the majority opinion in the Chinese Exclusion Case of 1889, which affirmed the authority of the government – informed by racial prejudice – to exclude Chinese people from immigrating to the United States. Plenary power itself is not the main thrust of the decision, but rather the authority of the government to prohibit a class of individual from entering the country. However, the author of the decision, Justice Field, included in the wording of the majority opinion the aphoristic declaration that immigration decisions of the Congress, acting as a political branch of the Federal government, were “conclusive upon the judiciary.” Which means – and immigration scholars will confirm this – that the judicial branch would henceforth refrain from scrutinizing immigration legislation and enforcement thereof for Constitutional compliance. This hands-off-immigration mantra has been reaffirmed repeatedly over the more than a century that has passed since the Chinese Exclusion Case. Plenary power colors our immigration code to this day. Why? Because it postulates that Congress, and by extension the Administration acting to enforce the law, can do almost anything it damn pleases without worrying about running afoul of the courts. In short, immigration law lives in a legal orbit largely exempt from Constitutional oversight. A kind of Constitution-free zone. That goes a long way in explaining how we can fracture families, separate parents from their American children, impose the penalty of exile for petty offenses committed by legal residents, impose open-ended jail terms on aliens contesting their removal in the absence of a prison sentence, and so forth without a peep from the courts. All this in obeisance not to legislation or Constitutional interpretation, but to a dogma formed in the weeds of a race-baiting nineteenth-century Supreme Court decision.

Does that mean the Supreme Court has never intervened in immigration-related matters over the last century plus? Not exactly, but close. As we all know, the Court did take up the Arizona case, although as a matter of delineating state and federal authority, not to adjudicate the legitimacy of any Federal statute or policy. Where the court has acted more substantively in recent years, the issue, while ostensibly related to immigration, has been more closely associated with the general notion of due process.

We generally equate due process with fairness, and, indeed, fairness is a motivating component of due process as a legal requirement. However, Federal court scrutiny of immigration enforcement actions by the government rests on a circumscribed definition of due process. Simply put, the judiciary branch has insisted that immigration enforcement follow its own rules and apply them consistently. Doing that and no more would satisfy the due process requirement. The court has not, will not, opine on whether immigration law itself is fair, i.e., in conformity with the enumerated rights of persons under the Constitution. To do so would breach the plenary power doctrine the courts have heeded for so long. The Court looks for consistency in the rules of immigration enforcement; it does not review the substance of the rules. So, the Supreme Court, for instance, did intervene in 2001 to stop the deportation of a person who pleaded guilty to a controlled substance charge before that particular offense was identified as grounds for removal by the immigration code. There was no assessment of the code itself by the court, or its mode of enforcement. Plenary power remained untouched.

Now fast-forward to the more recent case of Arizona claiming jurisdiction over immigration. Thankfully, Arizona lost, but the decision was not the slam-dunk it should have been. For one thing at 5-3, it was not unanimous. For another, “papers, please” survived, albeit to little practical effect. As kooky as Antonin Scalia’s dissent may seem, the idea it advances, that authorities other than the federal government can exercise sway over immigration has gained enough traction to reach the Supreme Court in the first place, be minimally vindicated through legitimization of the Arizona law’s “papers, please” stipulation and garner the full-throated support of two other justices. It is also quite popular among conservative members of Congress, who included State jurisdiction in immigration matters in the GOP’s initial “statement of principles” guiding its approach to immigration reform earlier this year. So that little pang of yearning I feel seeing the Hazleton petition denied further debate by the Supremes stems from a desire to gauge whether the concept of state and local immigration laws has retained traction, gained some or skidded off the road. A new opinion, even in dissent, would have given us clues.

And what would we do with the clues?

Well, let’s double back to our examination of plenary power, the hands-off-immigration golden rule the judiciary has heeded for 125 years. Suppose the notion of state sovereignty extending to immigration policy ends up growing legs, even short ones, to the point that a conservative court does, at some point in the future, review a case slightly less toxic and cedes some power over immigration to the states. Take this scenario: a Senate and House controlled by Republicans concocts an immigration bill that includes a license for the States to enact their own immigration legislation. A President signs it, either willingly or as a concession in exchange for a competing provision. The Justice Department would then be placed in a situation where it is defending States’ prerogatives against a civil complaint rather than opposing implementation by invoking the Supremacy Clause. Suppose as well that one more judgeship on the Supreme Court flips from liberal to conservative. (Or should I say from moderate to loony-tunes reactionary?) Not likely, but not so far-fetched, either. Right?

Okay, here is where I am going with this. If one day, the Supreme Court does let stand a state or municipal law separately penalizing immigration-related violations, perhaps even one it has defined itself, or institutes its own controls over immigration, how does such an event impact the plenary powers doctrine? Can plenary power, which is neither a Constitutional clause nor a law in the first place, survive the contradiction of extending immigration authority to the states? The doctrine clearly professes that the jurisdiction of the political branches of the Federal government over immigration matters is so exclusive that it defies any oversight by the judiciary. This premise would lose all claims of validity if the Supreme Court were to uphold a state’s power to enact its own immigration statutes despite that professed exclusivity, even if these statutes were designed for compatibility with Federal law. After all, the plenary power premise also proclaims an inviolable national interest in the Federal government holding the reins of immigration firmly in its hands without any interference, least of all from the judiciary, so as not to jeopardize policies tied, however loosely, to foreign affairs. By granting states and local governments the authority to enact separate immigration law, as Arizona, Alabama, Georgia and other states have attempted to do (not to mention small townships like Hazleton), or even dabble in it, the same Supreme Court that invented plenary power would pull the rug right out from under it. This, as we know, has not yet happened, but we have seen a bit more than mere flirtation with the concept of immigration control at the state and local levels.

Thus, we have a paradox of sorts: a good outcome insulating a bad judicial habit. On the one hand, restrictionists, stroked by the likes of Antonin Scalia, would have liked nothing better than to be awarded the mandate to use state law to regulate immigration to their own ends. We have witnessed the ugliness their campaigns have unleashed. They have failed up to this point. Obviously, a good thing.

On the other hand, plenary power lives to see another day. (Not so good.) But how long a day? If conditions return making the enforcement emphasis once again as politically expedient as it was not very long ago, we could see a renewed push for some state and local authority over immigration. And at some point it will carve a chink in the armor of federal exclusivity in immigration matters. When that chink appears – and “papers please” is already a scratch – the plenary power doctrine will be open to challenge. With the Supreme Court voiding Congress’ absolute and un-appealable sway over immigration, the logical foundation of plenary power simply disintegrates. The judiciary branch would be able, presumably, to exert Constitutional oversight of immigration law, practice and policy.

Think of the possibilities. Detention ruled to be the impermissible punishment it is in reality rather than the administrative measure it is supposed to be under the law. Family unity or childhood protection prevailing over whimsical deportation. Hardship taken seriously in relief petitions. Proportionality between an immigration offense and the penalty exacted for it. Writing for the majority in Padilla v Kentucky, Justice John Paul Stevens called exile an integral part of the punishment imposed on an immigrant guilty of a deportable offense. The most the Court could do was order that a defendant in criminal proceedings be made aware of immigration consequences of a guilty plea or verdict. Without plenary power hovering over it like Putin over Ukraine, a judicial court could subsequently find deportation for, say, a petty thief with no prior offenses to violate the 8th Amendment’s proscription of excessive penalties.

Of course, plenary power will not be abolished in some sweeping, ding-dong-the-witch-is-dead proclamation. Its genesis was pretty casual in the first place, a subtextual utterance embedded in a now discredited Supreme Court decision from 1889. A more likely scenario is that a judicial court, somewhere, observing the erosion of plenary power’s foundational logic, will find the audacity to adjudicate a petition for relief from an immigrant on Constitutional grounds, see the ruling percolate up the court system to either succeed or fail, and then be followed by subsequent attempts, among which one might eventually succeed.

If I, and presumably you, had our druthers, plenary power would crumble under the weight of the fictions (i.e., detention is not jail, exile is not punishment) that have perpetuated it, without the pre-conditional forfeiture of Federal authority over immigration policy and law. While I find no convincing excuse for insulating immigration practices from Constitutional scrutiny, nor do I believe we need the device of delegating immigration policy to individual states and localities in order to discredit plenary power. Still a word to the framers of all those neo-nativist, crypto-xenophobic state laws and local ordinances, and their supporters: be careful what you wish for.

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