Scalia “Jumps The Shark”

Ken AshfordImmigration and Xenophobia, Republicans, Supreme CourtLeave a Comment

Justice Scallia raves more against the politicization of the Supreme Court more than any justice in history, and yet, he barely even tries to hide the politics which guide is "objective" legal opinions.   It's blatent, as Steve Benen observes:

Scalia used the court's ruling on Arizona's anti-immigrant law to condemn President Obama and complain about the administration's enforcement policies. Consider this gem from Scalia's dissent in the 5-3 decision.

It has become clear that federal enforcement priorities — in the sense of priorities based on the need to allocate "scarce enforcement resources" — is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. [For certain illegal immigrants] immigration officials have been directed to "defe[r] action" against such individual "for a period of two years, subject to renewal."

The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct¬ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. 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. 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.

Remember, Obama's decision to implement many of the goals of the DREAM Act wasn't at issue in this case. Scalia didn't agree with the president's move, though, so he decided to make it part of the case anyway.

For that matter, Scalia complaining about lax enforcement of existing federal immigration laws — another element that really wasn't at issue in this case — it itself bizarre, given that Obama deporting more undocumented immigrants than any modern president.

Adam Winkler, a constitutional law professor at UCLA, adds:

“Scalia has finally jumped the shark,” Winkler told TPM. “He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.”

Here's what I find to be ths most striking of what Scalia said:

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. […] If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.

WTF?  That's the legal test?  "Would a state have entered into the Union if the Constitution itself contained the Court's holding?"  

That's ridiculous.  Scary ridiculous.  First of all, what kind of tea-leaf-reading judge is EVER going to know the answer to that question?  Most importantly, haven't we already answered the question of what happens to states that try to leave the union? And isn't it remarkable the Scalia, as a sitting justice, is taking the side that still calls it the War of Northern Aggression?

Apparently, Scalia isn't even aware of the Civil War.  Here is the crux of his legal argument about the sovereignty of states:

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro­vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.^2 Id., at 1883.

Yes.  I believe that's all true. Way to cite it in your 2012 opinion, friend.