Scalia Cites Slavery-Era Laws in Immigration Dissent

<a href="http://www.flickr.com/photos/stephenmasker/4668514068/sizes/m/in/photostream/" target="_blank">Flickr/The Higgs Boson</a>

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Justice Antonin Scalia’s angry dissent in the case over Arizona’s harsh immigration law is filled to the brim with partisan bile and dismissive rhetoric directed at his colleagues on the court. Scalia directly criticizes Obama’s immigration policy of deferring deportation for potential DREAM Act beneficiaries and describes Arizonans as being “under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” Scalia also suggests that “we should cease referring to [Arizona] as a sovereign State.”

But even among these eyebrow-raising passage is one section that stood out from the rest. Explaining why he would have let the Arizona law stand in its entirety, rather than invalidating most of its provisions as the court majority ultimately did, Scalia runs through some of the history of immigration law in the US and cites slavery-era statutes meant to restrict the movement of free blacks across state lines.

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.

While this might seem like an odd way to support his argument, Adam Winkler, a professor at the University of California-Los Angeles School of Law, warns against reading too much into it. “I think what he’s getting at is that there was a time when states had authority over this issue,” Winkler says, “but that was when Congress hadn’t enacted significant regulation on immigration.” 

With the exception of one provision, which Justice Anthony Kennedy’s opinion implied could be invalidated in the future, the high court agreed that the states don’t get to legislate where the federal government has already set immigration policy. Or as Winkler appropriately puts it, given the Obama administration’s record of aggressive enforcement of immigration law, “the federal government is the only one authorized to make life miserable for undocumented immigrants.”

LET’S TALK ABOUT OPTIMISM FOR A CHANGE

Democracy and journalism are in crisis mode—and have been for a while. So how about doing something different?

Mother Jones did. We just merged with the Center for Investigative Reporting, bringing the radio show Reveal, the documentary film team CIR Studios, and Mother Jones together as one bigger, bolder investigative journalism nonprofit.

And this is the first time we’re asking you to support the new organization we’re building. In “Less Dreading, More Doing,” we lay it all out for you: why we merged, how we’re stronger together, why we’re optimistic about the work ahead, and why we need to raise the First $500,000 in online donations by June 22.

It won’t be easy. There are many exciting new things to share with you, but spoiler: Wiggle room in our budget is not among them. We can’t afford missing these goals. We need this to be a big one. Falling flat would be utterly devastating right now.

A First $500,000 donation of $500, $50, or $5 would mean the world to us—a signal that you believe in the power of independent investigative reporting like we do. And whether you can pitch in or not, we have a free Strengthen Journalism sticker for you so you can help us spread the word and make the most of this huge moment.

payment methods

LET’S TALK ABOUT OPTIMISM FOR A CHANGE

Democracy and journalism are in crisis mode—and have been for a while. So how about doing something different?

Mother Jones did. We just merged with the Center for Investigative Reporting, bringing the radio show Reveal, the documentary film team CIR Studios, and Mother Jones together as one bigger, bolder investigative journalism nonprofit.

And this is the first time we’re asking you to support the new organization we’re building. In “Less Dreading, More Doing,” we lay it all out for you: why we merged, how we’re stronger together, why we’re optimistic about the work ahead, and why we need to raise the First $500,000 in online donations by June 22.

It won’t be easy. There are many exciting new things to share with you, but spoiler: Wiggle room in our budget is not among them. We can’t afford missing these goals. We need this to be a big one. Falling flat would be utterly devastating right now.

A First $500,000 donation of $500, $50, or $5 would mean the world to us—a signal that you believe in the power of independent investigative reporting like we do. And whether you can pitch in or not, we have a free Strengthen Journalism sticker for you so you can help us spread the word and make the most of this huge moment.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate