By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside. The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.
Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona. He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.
Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.
But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070. Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants.