Not too long ago, the Supreme Court dramatically curtailed the ability of the State of Arizona use its police powers to enforce federal immigration laws under SB1070. The majority’s theory was that the Constitution delegated the federal government exclusive power over immigration policy. But does that really mean that the Court would rule the Tenth Amendment never applies to immigration policy?
Definitely not, as illustrated by the Ebola quarantines recently imposed by New York and New Jersey Governors Andrew Cuomo and Chris Christie on health care workers returning from West Africa.
This time, the recognition that the states’ very existence is at stake is all that New York, New Jersey, Illinois and Florida need to justify disregarding a federal policy of standing down at the border.
Fifteen years ago, in the 1999 case of Alden vs. Maine, the Supreme Court held that all of the federal government’s delegated powers are limited by the background principle that the Constitution was meant to preserve the “continued existence” of the states. This principle, the Court explained, was merely highlighted by, rather than limited to, the Tenth Amendment’s reservation of powers to the States and the Eleventh Amendment’s protection of the states from being sued in federal court.
The Court then relied on this principle to strike down a federal labor law, which would have forced states to entertain lawsuits against themselves for overtime violations in their own state courts. The Court essentially ruled the federal government cannot tie the hands of the states and force them to suffer the horrors of entertaining adverse civil litigation on their own dime.
Certainly the horrors of Ebola pose as much of an existential threat to the states as the worst that plaintiff’s attorneys could have dished out under the Fair Labor Standards Act.
Should an Ebola pandemic arise, the states would have the primary responsibility to deal with it. This is because, under our Constitution, only the states have “police powers”; the direct authority to protect public health and safety. Moreover, there is little doubt that addressing an Ebola pandemic would necessarily command nearly every resource and organ of the states. Consequently, as recognized by Governors Cuomo and Christie, holding the line at the border may be the best and only way for the states to preserve their continued existence as autonomous sovereign bodies.
In view of these facts, and the Supreme Court’s ruling in Alden, it is clear that the federal government cannot tie the hands of the states when it comes to quarantining Ebola health care workers returning from overseas. If the Tenth Amendment means anything, the states must be free to respond when public health and safety is threatened by returning health care workers transmitting a contagious disease with a 70 percent mortality rate. It simply does not matter if the federal government ordinarily would have exclusive authority over immigration or international travel.
The Constitution is not a suicide pact for the states that ratified it.
The only real questions are whether more states will stand up while the federal government dithers — and whether the Supreme Court will eventually reconsider the states’ role in immigration policy more broadly in light of other existential threats arising from the federal government’s de facto open borders policy, such as terrorism.