Supremes Gut Arizona's Immigration Law; Scalia Strikes Down Results of the Civil War
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As Scott Lemieux writes, “This conflation of a nation-state and a constituent part of a nation state is utterly inappropriate, and the qualification that Scalia goes on to add—'subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress'—completely swallows the first statement.”
Given such constitutional requirements as the federal right to travel, American states are simply not "sovereign," and any reasoning based on this principle has no chance of withstanding scrutiny. Scalia's dissent continues in this vein, defending Arizona's law by making policy arguments against Congress and the Obama administration. "Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?" asks Scalia. Actually, yes—our constitutional framework does not allow Arizona to premept federal law if it doesn't like the way it's being exercised, and Arizona does not in fact have the inherent right to exclude people that the federal government does. And things get even worse as he tries to expand on his theory that the Supremacy Clause is inapplicable if Congress exercises its authority in a way Antonin Scalia doesn't like.
But Scalia went further than that on Monday. Scalia offered a Fox News-worthy political rant about the Obama administration's recent executive order allowing some undocumented immigrants who were brought into the country as children to avoid deportation and apply for short-term working papers.
“The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws,” Scalia said. “Perhaps it is, though Arizona might not think so.” He added: “To say, as the Court does, that Arizona contradicts federal law by enforcing immigration law that the president declines to enforce boggles the mind.”
Not only did his commentary on a political debate that has zero bearing on any of the issues before the court violate a long-standing norm against justices inserting themselves into partisan battles, but it also flew in the face of the majority's decision on SB 1070. That's because Obama's order was about the executive branch setting law enforcement priorities, and, as the SB 1070 decision specifically noted, “Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.”
In any event, Scalia's bizarre conception of the states as independent “sovereigns” didn't win the day. And in gutting SB 1070, the Supremes led the way for lower courts to overturn similar provisions contained in copy-cat legislation that has passed in a number of other states.
While one of the law's most contentious issues remains unresolved, it was, in the end, a pretty big win for civil liberties advocates.
Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy: And Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America . Drop him an email or follow him on Twitter.