Dear Dahlia and Judge Posner,

Rereading Justice Scalia’s amazing dissent in the Arizona immigration case brought to mind an astute observation by the statesman/humorist Sen. Al Franken. The Founding Fathers, he noted, adopted a constitution that gave all the important powers to the states, and very few to the national government. Pause. That didn’t work, he says, and so a decade later they got rid of the Articles of Confederation and adopted the Constitution we have today.

Justice Scalia’s exaggerated view of a sovereign-state-centric constitution sounds a lot like the one that those who met in Philadelphia in the summer of 1787 rejected and replaced with a national Constitution. As John Marshall was later to say of this new Constitution, “The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.”

The national government, to be sure, slumbered through its first half-century. Its full potential was reached only with the Civil War, and after the passage of the 14th Amendment’s sweeping limits on state prerogatives. The notion of states as fully “sovereign” seems hard to square with the reality of the American Constitution we have, especially the post-Civil War “Rebirth of Freedom” Constitution.

And yet, the one thing an advocate before the Supreme Court can never, ever do is to suggest in any way that the states are less than fully sovereign. Full state sovereignty has to be taken as an assumption, or a trap door will open beneath your feet and you will descend to some black hole deep in the basement of the court. Thus, state sovereignty is used as the premise of a question Justice Scalia asked of the solicitor general at argument in the immigration case: “[W]hat does sovereignty mean if it does not include the ability to defend your borders?” Well, what it means is that if ability to defend your borders is a key concept of sovereignty, then sovereignty is a wholly inapt description for American states. I would have thought it clear under the national Constitution that the American people are free to move throughout the country: New York simply cannot keep out people from New Jersey.

Eric Posner’s insightful article elsewhere on Slate demonstrates that “Scalia’s view is rooted in a nostalgic view of the U.S. Constitution that long ago ceased to reflect reality.” Eric is referring to Scalia’s notion that the court has no business subordinating the states to a president’s policies on enforcement of the immigration laws. Only Congress can make determinations that override the states on this subject, and there is no room for the exercise of presidential prosecutorial discretion, in Justice Scalia’s view.

So Justice Scalia thinks now. But Stanford Law prof. Pam Karlan, working on her greatly anticipated forward to the Harvard Law Review’s Supreme Court Term issue, noted to me that Justice Scalia took a different approach in his truly classic 1998 dissent in Morrison v. Olson. Back then, he argued that “law enforcement functions” have “always and everywhere” been an exercise of executive power; that “the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted” involves “the balancing of various legal, practical, and political considerations, none of which is absolute”; and that “[t]o take this away is to remove the core of the prosecutorial function, and not merely ‘some’ Presidential control.”

Justice Scalia had it right in Morrison v. Olson. And he got one thing right in his bench statement in this week’s immigration case. “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Motion seconded.

Walter

[Note: I need to make a correction. In discussing the Montana case, I suggested that cert was denied by the court. That is, of course, wrong. As prof. Steven Lubet of Northwestern Law School pointed out to me, the court obviously had to actually grant cert before it could summarily reverse the decision of the Montana Supreme Court. Thanks, Steve.]