Scalia: “Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?”
By Rachel Alexander l July 12, 2012
Supreme Court Justice Antonin Scalia | AP Photo
On June 25, 2012, the Supreme Court of the United States (SCOTUS) upheld by 5-3 one part of Arizona’s tough law against illegal immigration, SB 1070, while striking down three other parts. The decision came as a result of the Obama administration suing Arizona, alleging that federal immigration law pre-empted the state’s 2010 passage of the Support our Law Enforcement and Safe Neighborhoods Act. Justice Anthony Kennedy’s opinion for the majority held that one of the most controversial provisions, known as the “show me your papers” provision, was constitutional. It requires law enforcement to make a reasonable attempt to determine a person’s immigration status if detained. The court emphasized that state law enforcement officials already have the discretion to ask about immigration status; the law merely makes that inquiry mandatory, if the police reasonably suspect the person is an illegal immigrant. It also noted that there was a safeguard in the law that instructs officials not to consider race or national origin unless already permitted by law, and that there was no evidence the verification process would result in prolonged detention.
The court struck down the bulk of SB 1070’s provisions. One of these provisions would have made it a state crime for an immigrant not to carry registration papers, another would have allowed for warrant-less arrests where police believe there was probable cause a crime was being committed that was a deportable offense under federal law, and a third provision would have made it a crime for illegal immigrants to work or apply for work. The court cited the Supremacy Clause of the U.S. Constitution and reasoned that Arizona had impermissibly regulated an area reserved for the federal government. Previously, the United States Court of Appeals for the Ninth Circuit had struck down all four provisions.
The Obama administration responded immediately, announcing that it was revoking 281(g) agreements with Arizona law enforcement that had permitted them to enforce federal immigration laws. This was done to counter the provision of SB 1070 that was upheld – making it difficult for local law enforcement to work with federal immigration officials when they detain suspects and check their immigration status. Immigration and Customs Enforcement (ICE) issued a statement declaring that when the provision goes into effect, it will not automatically accept for deportation every person arrested under SB 1070. Instead, ICE will only respond to situations considered priorities, such as where an illegal immigrant has been convicted of a serious crime or is a threat to national security.
Outraged, Arizona’s Governor Jan Brewer declared that the Obama administration was essentially telling the state, “Drop dead, Arizona. Drop dead and go away. We’re going to ignore you.”
Three of the conservative justices on the Supreme Court who concurred dissented in part with the decision: Antonin Scalia, Clarence Thomas, and Samuel Alito. Chief Justice John Roberts joined with the liberals on the court in the majority opinion, written by swing vote Justice Anthony Kennedy. The SB 1070 decision came down days before Roberts sided again with the liberals on the court on Obamacare, upholding as constitutional government-mandated healthcare. If Roberts had not sided with the liberals on the court, and instead taken a stand insisting on upholding more of SB 1070’s provisions, perhaps this decision could have turned out differently. Unfortunately, Roberts appears to be turning out more like a Justice Souter on the court than the constitutional conservative everyone expected him to be.
Scalia is an originalist, and his dissent analyzes the history of how the Constitution was written. The Constitution was intended by the Founding Fathers to preserve the sovereignty of each state to exclude from its territory people who have no right to be there. Scalia believes the majority’s decision tramples on states rights. He quotes President James Madison saying that “the Constitution’s provisions were designed to enable the States to prevent ‘the intrusion of obnoxious aliens through other States.’” Scalia observes that during the first 100 years of America, the states enacted numerous laws restricting the immigration of certain classes of people, including convicted criminals and persons with contagious diseases. He asks, “Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Scalia wonders, “Would the states conceivably have entered into the union if the Constitution itself contained the court’s holding?”
He concludes his dissent, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.” Since the federal government is doing nothing in the area of illegal immigration, there is no conflict with federal immigration law. “Arizona has moved to protect its sovereignty, not in contradiction of federal law, but in complete alliance with it,” he wrote. Additionally, he notes that if SB 1070’s detainment provision affects any part of federal law, it would be the Fourth Amendment, not immigration law, “I know of no reason why a protracted detention that does not violate the fourth amendment would contradict or conflict with any federal immigration law.”
Scalia points to the Obama administration’s executive order ceasing deportation of young illegal immigrants as evidence of the federal government’s flagrant disregard of the law. In his characteristically caustic style, he writes, “But to say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.” He laments, “Thousands of Arizona’s estimated 400,000 illegal immigrants … are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.” Scalia went on to warn, “What I do fear—and what Arizona and the States that support it fear—is that ‘federal policies’ of non-enforcement will leave the States helpless before those evil effects of illegal immigration.” He declares, “Arizona bears the brunt of the country’s illegal immigration problem.”
While the Obama administration declares that the U.S.-Mexico border is safer than ever, those living next to the border disagree. One farmer in South Texas near the border, who is fearful of revealing his identity, reports that a federal agent advised him to wear a bulletproof vest while working in his fields. He describes, “I walk this soil every day and have since I was old enough to come out on my own. In this part of Texas, it is worse than it’s ever been.”
A Rasmussen poll conducted in June of 2012 found that 58% of likely U.S. voters think the policies and practices of the federal government encourage illegal immigration. A Fox News poll from April 2012 found that 65% of Americans support SB 1070. Five other states have enacted laws similar to Arizona’s, although they avoided creating new crimes for immigration violations, as Arizona did in two provisions that were struck down by the court. Those states are Alabama, Georgia, Indiana, South Carolina and Utah.
The Supreme Court is out of line with the American people and the U.S. Constitution by striking down most of SB 1070. Constitutionalists can no longer count on conservatives in the judiciary to adhere to the tenets of the Constitution. Chief Justice Roberts has demonstrated that although he was appointed as a constitutional conservative, he will desert those principles under pressure to fit in with the Washington D.C. lobbyists’ cocktail circuit, according to sources. To make matters worse, the Obama administration jumped in and also thwarted the will of the people by invalidating the ability of the states to uphold the remaining standing provision of SB 1070. SCOTUS’ SB 1070 decision represents not only a crisis of the judiciary, but a crisis of the executive branch as well as the congressional branch, since Congress has refused to act to enforce immigration laws. What has happened with SB 1070 is far worse for our sovereignty and constitutional principles as a republican democracy than it seems at first glance, since all three branches are complicit in thwarting the will of the people.
Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to