Immigration, Preemption, Arizona, and Scalia's dissenting opinion

The Supreme Court has issued its long awaited opinion in Arizona v. United States, in which it found major portions of Arizona's recent immigration law to be preempted by federal immigration law. Justice Scalia's dissent is fascinating for two reasons.  First, citing Vattel and Pufendorf, he seems to argue that Arizona (at least when not acting contracy to federal law) has sovereign powers to exclude rooted in international law. Second, he recognizes that these "17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reasons.  Pufendorf, for example, maintained that states are generally expected to grant 'permanent settlement to strangers who have been driven from their former home..." Page 1, note 1.

While his first point is unlikely to gain much traction among the current court, he second point plants a seed that may bear fruit in the future. Misreading Vattel, Pufendorf, and others, the Supreme Court in the 19th century created what is known in immigration circles as the plenary power doctrine, concluding that Congress (and to some extent the Executive) have almost unbridled power over issues of immigration:  admission, exclusion, and expulsion. This view has carried over into the 20th- and 21st- centuries.  Justice Scalia is the first justice - as far as I can tell - to recognize that even the Law of Nations counciled sovereigns to exercise this "plenary power" prudentially with an eye toward opening boarders as far as possible to those in need. Although it is too early to tell, this footnote might be provide a basis for revisiting the absolutist misreading of the right to exclude.