Justice Scalia Is Overruled by Judge Posner

Justice Antonin Scalia’s over-the-top outburst in the form of an oral reading of his dissent in Arizona et al. v. United States elicited a stinging rebuke from Judge Richard Posner of the Court of Appeals for the Seventh Circuit. Judge Posner’s rebuke of Justice Scalia is properly receiving a lot of attention, but the attention has been focused chiefly on Judge Posner’s comments on the unseemly political character of Justice Scalia’s outburst. But Judge Posner’s comments on the substantive issues involved in illegal immigration are also worthy of note.

Illegal immigration is a polarizing political and social issue. Many people hate illegal immigrants. Others regard them as an indispensable part of the American labor force. There are 10 million to 11 million illegal immigrants (for rather obvious reasons no one knows the exact number), and illegal immigrants are thought to amount to about 5 percent of the total labor force. Because they tend to do jobs that few Americans want, and because their wages are below average, many (though by no means all) economists believe that the illegal immigrants actually increase the wages of Americans (including legal immigrants). The reason is that the existence of a large body of low-wage workers increases the demand for goods and services both by reducing the cost of production and by their own purchases as consumers, and increased demand for goods and services translates into increased demand for labor and hence higher wages. This is not a certainty but seems a good guess of the effect of illegal immigrants. Illegal immigrants do receive some social services, but fewer than citizens do. It is unclear whether they commit more crimes on average than citizens; they may commit fewer. Of course, some illegal immigrants are criminals, and the Obama administration has decided to focus the very limited resources of the federal immigration enforcement authorities on catching and deporting the criminals. Focusing on them and leaving the law-abiding (law-abiding except for the immigration law itself!) illegal immigrants seems a defensible policy. And certainly state and local law enforcement can assist the feds in apprehending illegal immigrants who commit crimes (being in this country without legal authorization is unlawful, but, with some exceptions, it is not criminal); nothing in the Arizona decision prevents that.

In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona’s bearing the brunt of illegal immigration.) Maybe Arizona’s illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.

PS I notice that one blogger points out that Judge Posner’s arithmetic is off.  If the total number of illegal immigrants is 10-11 million, then illegal immigrants are approximately 3% of the US population, so that Arizona has a significantly higher ratio of illegal immigrants to its population than does the US as a whole.  Still, if the number of illegal immigrants in Arizona were equal to only 3% of Arizona’s population, there would be about 200,000 illegal immigrants in Arizona.  That Arizona may have an extra 160,000 illegal immigrants compared to the national average is not quite the same as “bear[ing] the brunt of the illegal immigration problem.”

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7 Responses to “Justice Scalia Is Overruled by Judge Posner”


  1. 1 Julian Janssen June 28, 2012 at 6:20 am

    I like this post and your indication of the desire that a Supreme Court Justice rely upon facts and evidence when he says something as controversial as what he said. Unfortunately, I’m not sure if such “committed” conservatives can be expected to believe in facts. Scalia is guilty of uttering something with truthiness, it “feels” true, so he said it. Maybe one day reason will compel people to action, rather than mere prejudice (by which I mean bias, not that he has something against those who demographically compose the illegal immigrant population). Here’s to hoping that the truth shall set us free…

  2. 2 dajeeps June 28, 2012 at 10:57 am

    Scalia blew it on his dissent anyway. IMO, the case wasn’t so much about immigration, but rather rule of law. All powers that are exercised by the executive are powers of congress, and the power that was delegated to congress is uniform rule of naturalization. When that uniform rule is selectively enforced, it is no longer uniform, but arbitrary and capricious in result, unconstitutional. Not liking a law is not an excuse to ignore it, but the Court just rubber-stamped that kind of behavior which will now impact nearly every instance in which the supremacy clause has been invoked, not just immigration. Its better to be able to see the forest through the trees and not make rulings like this on a case by case basis because there is no telling what unintended consequences will be encountered, and that is a precedence that will cut both ways.

  3. 3 Benjamin Cole June 28, 2012 at 9:02 pm

    Scalia seems to thik that the 50 states can make their own immigration laws, and cite pre-Civil War law regardoing the migration of free blacks into Southenr states (which was outlawed).

    What next? 50 American republics?

    And speaking of structural impediments…immigration is one reason the USA grows in a way Japan can not. So structrual impediments are bad unless they are good?

  4. 4 David Glasner June 29, 2012 at 9:55 am

    Julian, What is disturbing about Scalia is that he seems to have lost any inhibition about sharing any foolish thought that pops in to his head with the rest of the world, just because people pay attention to him. On a good day, maybe 1000 people will read something that I have written on this blog. Scalia has millions just waiting to hear him opine about any and everything, and he just cannot bear to withhold his thoughts from them. And the older he gets, the less self-control he seems capable of exercising.

    dajeeps, Interesting point.

    Benjamin, Further, very shocking, confirmation of my response to Julian.

  5. 5 david stinson June 29, 2012 at 11:23 am

    Offered without comment, from Wikipedia, regarding the case of ex-newspaper-magnate, Conrad Black:

    ” On June 24, 2010, the U.S. Supreme Court released its 9-0 decision ordering the 7th circuit court, which had upheld Black’s conviction at trial, to review its own decision regarding the three fraud convictions against Black in light of the Supreme Court’s construction of the honest services fraud statute in Skilling v. United States. Writing for the Court, Justice Ginsburg was critical of Judge Posner’s decision, referring to the “anomalous” reasoning and “invented law” found therein.”

  6. 6 Tas von Gleichen June 30, 2012 at 10:51 am

    The whole border issue is insane to me. The US – Mexican relationship is insane to me as well. Not to mention what happens when US citizen do it the other way around. It always sounds one sided. In my opinion immigrants is what made this country so great in the first place. Trying to get rid of them will only do more damage.

  7. 7 David Glasner July 1, 2012 at 2:48 pm

    david, Richard Posner is not my favorite judge, but his criticism of Justice Scalia still seems on the mark to me.

    Tas, Justice Scalia is not necessarily interested in damage control.


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About Me

David Glasner
Washington, DC

I am an economist at the Federal Trade Commission. Nothing that you read on this blog necessarily reflects the views of the FTC or the individual commissioners. Although I work at the FTC as an antitrust economist, most of my research and writing has been on monetary economics and policy and the history of monetary theory. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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