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After Arizona, in which direction should they expect reform to go, and in which direction should they push those policies?As with other crucial questions about our immigration policy, the answers may well lie in a careful examination of American history.
As Scalia noted, "In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States' traditional role in regulating immigration — and to overlook their sovereign prerogative to do so." He is correct: Federalism and immigration have interacted in complicated ways since our republic was created.
In fact, until the late 19 century, immigration was an issue largely left up to individual states to regulate.
A look at the history of our immigration system can therefore offer some important clarification of the dispute at the heart of Arizona v. But that history also has a great deal to say about our approach to immigration policy more broadly.
After all, Arizona did not resolve the much bigger dilemma facing the nation: how, exactly, we should repair a national immigration system that is quite clearly broken.
Arguing that the federal government had proved incapable of stopping the illegal immigration wreaking havoc in the state, Arizona lawmakers took matters into their own hands, enacting legislation that used state penalties and state police to try to give meaningful force to federal laws already on the books.
The federal-state power struggle ultimately landed before the Supreme Court, which, amid a swirl of politicized commentary on both sides of the matter, issued its ruling in June.The states would decide who could enter their ports, and their laws on that front dealt almost entirely with the exclusion of three types of individuals: criminals, paupers, and people suffering from contagious diseases.The resulting immigration system would strike us as exceptionally open and liberal.To allow each of the 50 states to enact its own immigration-control laws — even if those laws did not conflict with, but instead complemented, federal law — would, in the Court's view, violate the doctrine that "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." In the eyes of the Court's majority, the regulation of immigration has been so thoroughly dominated by the federal government as to leave virtually no room for action by the states.Justice Antonin Scalia disagreed, writing in his dissent that such a ruling "deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there." The majority's opinion, he contended, is supported by "neither the Constitution itself nor even any law passed by Congress." Nor is it supported by the history of immigration in the United States.An exceptionally open immigration policy controlled by the states remained in place, while the federal government managed the naturalization process.This state of affairs began to change only in 1875, when the Supreme Court, in Henderson v."The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens....The federal power to determine immigration policy is well settled," opined Justice Anthony Kennedy, writing for the Court's majority in Arizona v. In a 5-3 decision (Justice Elena Kagan recused herself), the Court struck down most of the Arizona law and limited the permissible range of state activity in the realm of immigration enforcement.Designed almost five decades ago, that system has ceased to function effectively, to suit the needs and circumstances of today's society and economy, and to retain the support of the public.It is precisely the failure of that system that has driven Arizona and other states to try to fix the problem themselves, and that has prompted lawmakers at the national level to spend the better part of the past decade in pursuit of "comprehensive immigration reform." That effort has tortured the nation's politics and stoked controversy surrounding questions of race and national identity — and yet has achieved essentially nothing. Here, too, history points to the answer: Our immigration policies, and the role the federal government plays in them, tend to follow American political trends more broadly.