In his oral dissent from the bench in yesterday’s Supreme Court ruling on Arizona immigration law, Justice Scalia (in true Federalist fashion) conveyed that if the original colonies had known that they would be “at the mercy” of the federal government on immigration policy, they would never have entered the union in the first place. 

I had to smile when I read those words, because “immigration policy” was used with such ease.  Were we not a nation entirely of immigrants when joining the union was up for discussion?  Was not policy concerned with equal opportunity, freedom of faith and fair elections?

I respect that the nuances of state pre-emption are never easy to parse out (it is a difficult area of law no doubt).  But a presumption of how our founding fathers viewed immigration might prove fruitless.  This is a new issue, very new.  And it requires new legal thought and a good soul-searching of our nation’s collective convictions.  We can’t hide behind the infallible thought of predecessors on this one.

I have had only a thimble-full of exposure to immigration practice in my legal education thus far – but from what I have seen, it is fraught with complication.  Immigration courts churn with hundreds of cases at time, dozens of languages spoken over one another.  On one hand, it is beautiful; on the other, heartbreaking.  Federal agencies still make mistakes.  Prosecutors scramble to prioritize who to send home and who to let be.

While I believe immigration (like all areas of law) needs well drafted rules and clear case law, it is too simple to reach back and find the answer in a historical context where we were all immigrants becoming Americans, not Americans deciding how immigration should go.  Yesterday’s decision is an important one for the sake of immigration protocol – but still, I can’t help but think what good things have sprouted from our “melting pot” ways.  And how “immigration policy” was once a uniter not a divider.

 *A quick post here, but wanted it to be timely. This is a big week for Supreme Court decisions – hope to do more writing this summer in between semesters.*