Supremes Gut Arizona's Immigration Law; Scalia Strikes Down Results of the Civil War

On Monday, the Supreme Court gutted Arizona's controversial immigration law, SB 1070, prompting a notably injudicious outburst from Justice Antonin Scalia.

In a 5-3 decision – Elena Kagan recused herself from the case – the majority ruled that 3 major provisions were unconstitutional under the Supremacy Clause, which holds that when a federal law conflicts with a state law, the former must prevail. The ”Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," wrote Justice Anthony Kennedy on the behalf of the majority, adding that "the federal power to determine immigration policy is well settled."

The federal government had made a strategic decision not to challenge the law on the basis of the 14th Amendment's Equal Protection or Due Process clauses. Its suit didn't focus primarily on the potential for rampant racial profiling that led to so much controversy around the law in the first place. Instead, the Justice Department argued more narrowly that federal immigration law pre-empted the state's efforts to create its own regulatory scheme.

Three provisions of SB 1070 ran afoul of that “settled” law, according to the decision. One imposed a state penalty for failing to “complete and carry an alien immigration document”; another made it a crime for undocumented migrants to try to get a job in Arizona; and the thrid would have allowed cops to detain anyone they believed to be an unauthorized immigrant without a warrant.

A number of media reports suggested that the court had “upheld” a civil liberties challenge to the “papers, please” provision – section 2(B), which allows law enforcement to ascertain the immigration status of people who get pulled over or arrested (if they have “reasonable suspicion” that the person is in the country illegally). But in overturning a lower court's injunction against the measure, the justices only ruled that it wasn't “facially” clear that it conflicted with federal law.

Again, the justices weren't presented with arguments that it violated the Due Process and Equal Protection clauses. But three other lawsuits filed against SB 1070 do make those arguments (among others), and the court left open the possibility that it may well be overturned at a later date.

The justices also placed limitations on the measure, stressing, among other things, that "officers may not consider race, color, or national origin" except to the extent permitted by the Constitution. What will happen when Arizona courts end up jammed with Latinos is an open question, but law enforcement officials who have challenged SB 1070 in court say that it's impossible to enforce the law without racially profiling residents of the Grand Canyon State.

Chief Justice Roberts joined the court's “liberals” in the ruling (according to an analysis of decades of Supreme Court decisions, only Justice Ginsberg counts as true liberal; the others are, more accurately, “judicial moderates”). Justices Scalia, Alito and Thomas all wrote separate dissents.

Alito agreed with the majority that the “papers, please” provision could be enforced and said that the state penalties for violating federal immigration laws were unconstitutional. But he wrote that the other two measures should have been upheld. Thomas wrote that all four provisions were constitutional based on his long-standing (and legally suspect) belief that the Supremacy Clause only applies to cases in which the language of state and federal laws directly contradicted each other.

But it was Antonin Scalia, the crankiest of the conservative justices, who took the opportunity to display how rigidly ideological – and partisan – the right-leaning jurists have become.

In his dissent, Scalia essentially struck down the results of the Civil War. He wrote that Arizona was a “sovereign state,” and “has the inherent power to exclude persons from its territory." He added that the majority opinion, “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.”

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.

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