On Immigration, Conservatives Should Look To Justice Scalia, Not Trump

Kevin Mooney Kevin is a journalist and investigative reporter for the Commonwealth Foundation in Harrisburg, Pennsylvania, and the Heritage Foundation in Washington D.C.
Font Size:

When the conservative movement went in search of an articulate, unifying presidential contender, the kind of candidate who could persuade the public to embrace constitutional renewal in anticipation of the 2000 election cycle, National Review magazine offered up Associate Justice Antonin Scalia.

Yes, this would have meant losing Scalia’s “powerful voice” on the U.S. Supreme Court, but it would also mean that a President Scalia would be in a position to nominate his own replacement. That’s what John O. McGinnis, an instructor at the Cardozo Law School of Yeshiva University in New York, told readers in an article featured as part of a “Special Recriminations Issue” following President Clinton’s re-election.

“No one else of prominence in American public life makes the case for conservatism better than Scalia,” McGinnis wrote. “Time after time on the Supreme Court he has reaffirmed respect for the traditional American values encoded in the Constitution and has done so in a pungent and lively style manner that cuts through the fog generated by the liberal media. On the campaign trial, he could do the same.”

Just as well that Scalia’s “powerful voice” remained right where it was, advancing timeless, and often prescient, observations from the bench rooted in a philosophy of constitutional interpretation known as originalism; an approach that says the  Constitution’s text and its original meaning should bind all of us including U.S. Supreme Court judges. While he has declined to enter the presidential fray, Scalia’s commitment to originalism, and the rule of law, could figure prominently into the 2016 campaign.

In the age of Obama, there is no paucity of blistering Scalia dissents for Republican candidates to seize upon as they call out activist judges. But there is one that now arguably stands out thanks to Donald Trump’s incendiary broadsides against government officials in both the U.S. and Mexico who have failed to step up to the challenge posed by illegal immigration. While his primary opponents quite rightly focus attention on the left-leaning positions Trump has held on a range of cultural and economic questions, public consternation over lax enforcement of federal immigration laws outweighs the Republican frontrunner’s apostasy in other areas for the moment; there’s the rub. It’s not clear how much of an appetite there really is among primary voters for Trump’s unrealistic, costly, counterproductive mass deportation fantasies even as he seizes upon legitimate concerns. The resources and logistics that would go into the deportation efforts Trump appears to have in mind, for instance, would cost America’s already beleaguered taxpayers a pretty penny without substantially improving public safety. It’s not going to fly. But among those Republicans who will cast the decisive primary votes, there’s no question about their commitment to the rule of law and the need for robust enforcement measures that have gone missing at the federal level.

A big part of the answer is to provide state officials with greater authority and latitude to enforce federal immigration law. That’s an achievable goal; one that would allow law enforcement to husband its resources and target the genuinely dangerous illegal aliens who commit violent acts on top of their immigration violation.

The opportunity here is for the genuine conservatives in the race to take inspiration and direction from Scalia’s concurring and dissenting opinions in the Supreme Court’s June 2012 ruling that overturned key provisions of an Arizona state law. Known in full as the “Support Our Law Enforcement and Safe Neighborhoods Act” or SB 1070, the law’s stated purpose was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

The Court did uphold that part of SB 1070 that directed police officers to probe into the immigration status of anyone detained or under arrest if the officer had a “reasonable suspicion” that individual was in the country illegally. Of all the law’s provisions, this is one that generated the most controversy and attracted the most media attention. Yet, the federal government’s own attorneys acknowledge that this section of SB 1070 was in full compliance with the federal law.

“That concession, in my view, obviates the need for further inquiry,” Scalia wrote.

Earlier this month, a U.S. District Court judge in Arizona turned back a legal challenge to SB 1070 and upheld the provision that calls for police officers to investigate the legal status of suspected illegal aliens while enforcing other laws.

So, for the moment, there is at least some room for states to jump in where the Obama administration has declined to enforce the law.  Of course, if Nino had his druthers, the Supreme Court would have upheld SB 1070 in its entirety. One section that was overturned would have enabled a police officer to make an arrest without a warrant if the officer had probable cause to believe that a certain individual was “removable” from the U.S. Team Obama told the Court this section was pre-empted by federal immigration law because it allowed states to make arrests “without regard to federal priorities.” In response, Scalia took down the administration’s “assault on logic” with language that should be invoked on the campaign trail.

“The state’s detention does not represent commencement of the removal process unless the federal government makes it so,” he wrote. “But that’s not the most important point. The most important point is that as we have discussed, Arizona is entitled to have ‘its own immigration policy’ – including a more rigorous enforcement policy – so long as that does not conflict with federal law.”  

After the administration lost out on revoking Arizona’s authority to verify the status of suspected illegal aliens, the adolescent White House terminated Section 287(g) agreements with Arizona law enforcement. 287(g) is the section of the Immigration and Nationality Act, which authorizes the Immigration and Customs Enforcement agency to deputize state and local enforcement officers who can then perform immigration law enforcement functions. The agreements, which assume different forms in different states, make smart use of federalism. The Republican candidates looking to get an angle on Trump may want to jump in here.

Scalia doesn’t explicitly mention the program in his opinion, but he does make it clear that states have the sovereign power to protect their borders. In fact, he even goes so far as to suggest that if the Court’s holding in the Arizona case had been incorporated into the Constitution in 1787, the states would not have signed up. “The delegates to the Grand Convention would have rushed to the exits,” he wrote.

McGinnis, the law professor who encouraged Scalia to seek the White House, described him as “the gold standard against which all other candidates should be judged.”

The idea of Scalia shifting into an overt political role has not gone away. E.J. Dionne Jr., the liberal Washington Post columnist, actually called on Scalia to resign from the court after the Arizona ruling. Richard A. Posner, a federal appeals court judge, wrote at the time of the ruling that he anticipated seeing Scalia’s opinion quoted on the campaign trail. It certainly should be this time around.

When Scalia was floated as a potential presidential candidate on the pages of National Review, he was viewed as someone who could unite the different strands of the conservative movement. Wall Street Journal libertarians and National Review traditionalists who have differed on the particulars of immigration policy could certainly unite around an approach rooted in the rule of law that challenges the perfidy of the Obama Administration. Even if Scalia is not in the race for president, the position closest to Scalia is still worth occupying.