Justice Antonin Scalia wrote a scathing dissent to the just-announced majority decision for Arizona v. United States, which struck down three of the four provisions of the controversial Arizona Senate Bill 1070, the immigration law passed in 2010. This must go down well with the thin skinned Obama. “The President said at a news conference 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 Act.7 Perhaps it is, though Arizona may not think so. 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.” Boggles mine too Justice Scalia.
I see this as a double shot from the Supreme Court Judge. First, Scalia questions whether Obama has the right to put in his amnesty program. Second, he believed that Arizona had every right to do what Obama refuses to do, enforce the immigration laws on the books.
The Court did uphold the key provision requiring law-enforcement officers to check the immigration status of anyone detained or arrested if “reasonable suspicion” exists that the person is in the country illegally, Scalia maintained that the law should have been upheld in its entirety on the basis of a state’s sovereign rights:
Today’s opinion, approving most of the ultra liberal Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, 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.
“That power to exclude,” writes Scalia, “has long been recognized as inherent in sovereignty.” He briefly outlined the pre-Constitution and early post-Constitution history of immigration enforcement (“After the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so.”), then offered two scenarios in which regulation of immigration by the states is excluded by the Constitution:
when (1) it [state regulation] has been prohibited by a valid federal law, or (2) it conflicts with federal regulation — when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.
The first is not applicable here: Congress has not “unequivocally expres[sed] its intent to abrogate” state enforcement rights. Scalia spends the bulk of his dissent showing that none of the Arizona law’s four provisions fits the second scenario, either.
Discussing Section 2 (that provision upheld by the Court), Scalia notes that the attorneys for the federal government conceded that the section is in full compliance with existing law: “That concession, in my view, obviates the need for further inquiry.” However, the federal government called upon the Court to overturn the case based on speculation. Scalia quotes United States v. Salerno (1987) in response: “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.”
Responding to contentions over Section 6, which would allow a law enforcement officer to arrest a potentially “removable” person without a warrant, Scalia writes that Arizona is, again, in compliance with federal policy and the Constitution:
The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy” — including a more rigorous enforcement policy — so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States.”. . . It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. [italics original]
