Sunday, May 2, 2010

How Hard Is This?

How Hard Is This?

The question of the constitutionality of the Arizona law.  We have a surprisingly similar case already decided by the Supreme Court involving a state attempting to regulate the arrival of immigrants.  From New York v. Miln (1837):
In February, 1824, the Legislature of New York passed "an act concerning passengers in vessels arriving in the port of New York." By one of the provisions of the law, the master of every vessel arriving in New York from any foreign port or from a port of any of the states of the United States other than New York is required, under certain penalties prescribed in the law, within twenty-four hours after his arrival, to make a report in writing containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voyage, and if any of the passengers shall have gone on board any other vessel or shall, during the voyage, have been landed at any place with a view to proceed to New fork, the same shall be stated in the report.


The act of the Legislature of New York is not a regulation of commerce, but of police, and, being so, it was passed in the exercise of a power which rightfully belonged to the state. The State of New York possessed the power to pass this law before the adoption of the Constitution of the United States. The law was "intended to prevent the state's being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such." The end and means here used are within the competency of the states, since a portion of their powers were surrendered to the federal government.
Is there any question that the problem of pauperism and public charge is a motivator for Arizona's law?

It is obvious that the passengers laws of the United States only affect, through the power over navigation, the passengers whilst on their voyage and until they shall have landed; after that, and when they shall have ceased to have any connection with the ship, and when therefore they have ceased to be passengers, the acts of Congress applying to them as such, and only professing to legislate in relation to them as such, have then performed their office, and can with no propriety of language be said to come into conflict with the law of a state, whose operation only begins where that of the laws of Congress end, whose operation is not even on the same subject, because although the person on whom it operates is the same, yet, having ceased to be a passenger, he no longer stands in the only relation in which the laws of Congress either professed or intended to act upon him.

A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation when that jurisdiction is not surrendered or restrained by the Constitution of the United States.

It is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise are not surrendered or restrained by the Constitution of the United States.

All those powers which relate to merely municipal legislation or which may more properly be called internal police are not surrendered or restrained, and consequently in relation to these the authority of a state is complete, unqualified, and exclusive.
Is there any question that Arizona's interest in dealing with public education expenses, public medical care, and criminals unlawfully present in Arizona falls under the police powers of the state?
Persons are not the subjects of commerce, and not being imported goods, they do not fall within the reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition of the states from imposing a duty on imported goods.
I understand that there is some question as to whether Congress, by regulating immigration, has a legitimate basis for action, but unless Congress acts (and for practical purposes, they have not acted), the state seems free to do so.

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