On April 25, 2012, the U.S. Supreme Court heard oral argument in Arizona v. United States, involving the constitutionality of the State’s effort to combat illegal immigration. In one sense, it was a rematch between former Solicitor General Paul Clement, arguing for Arizona, and the current Solicitor General, Donald Verrilli, contending for the United States. The two had squared off just a month before in United States v. Florida, the battle royale over the constitutionality of the ObamaCare mandate requiring everyone to purchase health care insurance prescribed by the federal government.

In each case, the justices, by their questions and comments, appeared to disfavor the Obama administration’s position. In the ObamaCare case, several justices expressed concern that, if the individual mandate were to be found constitutional, it would dismantle the federal system, rendering the Tenth Amendment reservation of powers to the States and the people a dead letter. Now, in the Arizona immigration case, several justices expressed concern that the Obama Administration’s claim of “exclusive power” to regulate immigration would have a similar impact on the independence and sovereignty of the 50 states.

The issue arose early in the oral argument, even before the solicitor general could make his claim of exclusivity. Justice Scalia kicked off, asking Mr. Clement whether he would concede “that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing … and the State has no power to close its borders to people who have no right to be there.” Remarkably, Mr. Clement did not answer the justice’s inquiry with a firm no, prompting Justice Kennedy to inquire: “Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?” This time Mr. Clement answered: “I think my answer to that is no.” But he did not back up his answer with either reason or conviction, resting Arizona’s case on the sole ground that the state has the constitutional right to help the federal government to enforce federal law.

In contrast, General Verrilli boldly rejected Mr. Clement’s basic argument that the Arizona immigration law was nothing more than the state “aid to Federal immigration enforcement,” when as a matter of fact, “Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State. That is something Arizona cannot do because the Constitution vests exclusive –”

Before General Verrilli could finish his sentence, Justice Sotomayor asked him to “answer Justice Scalia’s earlier question…whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove … from its borders a person who’s here illegally.” Given the opportunity to finish his sentence, General Verrilli stated: “It is our position [that] the Constitution vests exclusive authority over immigration matters with the national government.”

In response, Justice Scalia jumped back into the fray, noting, first, that the constitutional grant of exclusive authority is over “naturalization which we’ve expanded to immigration”:
But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Undaunted, General Verrilli pressed forward, asserting that “the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.” Citing the import/export provision in Article I, Section 10, Clause 2, Justice Scalia fired back:
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 excluded diseased material.

Thereafter, Justice Scalia and General Verrilli would clash several times, with the general sticking to his claim of national exclusivity over immigration as essential because of “significant real and practical foreign relations effects,” culminating in the general’s calling attention to “Mexico['s] central role in this situation,” to which Justice Scalia retorted: “So we … have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”

No doubt, Arizona’s cautious approach was dictated by its decision not to challenge what Justice Scalia described as what “we’ve” — that is, the Court — read into the Constitution concerning the power of Congress over immigration.

Our firm filed two amicus curiae briefs in the Supreme Court in this case supporting Arizona — one last September at the petition for certiorari stage, and one this February on the merits. Our clients on these briefs are U.S. Border Control, U.S. Border Control Foundation, Policy Analysis Center, Institute on the Constitution, The Lincoln Institute for Research and Education, Conservative Legal Defense and Education Fund, Gun Owners of America, Inc., Gun Owners Foundation, English First, English First Foundation, Virginia Delegate Bob Marshall, Oklahoma Representative Charles Key, and Wyoming Senator Kit Jennings.

Our amicus brief in support of Arizona did what Arizona chose not to do — explain the Founders’ original constitutional plan.

First, we pointed out that the federal government’s power over immigration is not among those enumerated in the Constitution, but one that has been grafted onto the “naturalization” power by the Court as a power “inherent in sovereignty, and essential to preservation.”

Then, we argued that as a nation of dual sovereignty each State, like the national government, has the same inherent power of sovereignty, including the power of self-preservation.

Third, we noted that while the national government’s power was supreme in the regulation of its international boundaries, the States’ internal boundaries remained in the power of the States.

Finally, we observed that, with respect to a state’s internal boundaries, Article IV, Section 2 and the Fourteenth Amendment expressly limited each state’s power as applied to citizens of other states and citizens of the United States, but not with respect to citizens of foreign nations.

Justices Scalia and Kennedy’s questions seemed to track our brief’s line of reasoning, asking whether Arizona had the power to exclude aliens who are not legally in the country. If so, then Arizona’s policy of enforcement by attrition is perfectly permissible, General Verrilli’s claims to the contrary notwithstanding.

If Arizona has retained its inherent sovereign authority to defend its internal borders, except as specifically limited by the Constitution, then not one of the four contested provisions of the state’s immigration law is preempted by federal law.

First, the overall purpose of the law is constitutional in that it is predicated on an incontestable “interest in the cooperative enforcement of federal immigration laws … to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Such unlawful presence threatens the integrity of Arizona as a political and economic community, enhancing the risk of voter fraud and decreasing economic opportunities for Arizona citizens and their fellow Americans.

Second, sections 2(B) and 6 are designed to aid federal immigration enforcement, and are in harmony with federal statutes as written by Congress. Such provisions are not subject to pre-emption because Arizona’s priorities may differ from those of the executive department of the federal government. Pre-emption can never be based upon the discretionary policies of enforcement, as the Obama administration has argued here.

Third, section 3 of the law simply makes it a state crime not to comply with the federal law requiring all aliens to carry an alien registration card. This is not at all different from the state duplicating federal law prohibiting bank robbery. Furthermore, the State has a sovereign interest in identifying whether a person is a U.S. citizen because the Fourteenth Amendment provides that every resident of the state who is a U.S. citizen is, by definition, a citizen of the state.

Fourth, section 5(C), which imposes penalties on illegal aliens seeking employment in Arizona, is consistent with the exercise of its police power to preserve Arizona jobs for those persons who are lawfully part of the state’s economic and political community. While the federal law only penalizes employers of illegal aliens, Arizona’s interest in preserving jobs for persons lawfully in the state is necessary to preserve the public fiscal and the economic vitality of business within the state.

If the Arizona case is decided according to the measure of the Supreme Court’s jurisprudence in this area as argued narrowly by Arizona, the decision could be very much in doubt. However, if the case is decided based on the Founders’ plan for a robust role for the states and a limited role for the federal government, the decision should uphold the Arizona law.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They can be reached at wjo@mindspring.com or on Twitter @Olsonlaw.