Scalia dissents, in nakedly political terms, from the Supreme Court’s broad ‘Arizona’ consensus

The Roberts Court, with Obama appointees. ()
Tweet Share on Facebook Share on Tumblr Print

Ben Jacobs

Follow: feed

The Supreme Court went back to basics with Monday’s decision on Arizona’s controversial immigration law, SB 1070.

In Arizona v. United States, the justices seemed to put rigid ideology aside to reach a 5-3 decision (Justice Elena Kagan did not participate) that three of four challenged provisions in SB 1070 were unconstitutional because they violated the separation of powers between state and federal government.

In contrast to the expected decision on President Obama's health care law, now scheduled to be issued on Thursday, this decision didn’t hinge on obscure arguments about the vagaries of the Commerce Clause, the unique nature of health care or the application of a 200-year-old law requiring able-bodied men to have a musket around. Instead, it revolved around constitutional issues basic enough to be taught in Civics101 high school courses.

The question in Arizona was whether immigration law is inherently an issue for the federal government. The United States argued that federal immigration law preempted Arizona. Thus, Arizona violated the constitutional provision that granted Congress the power to "establish an uniform Rule of Naturalization.” By imposing its own restrictions on immigration, Arizona was preventing Congress from establishing a “uniform” law throughout the country.

MORE ON CAPITAL

ADVERTISEMENT

By contrast, Arizona argued that SB 1070 did not conflict with federal law, that it only dealt with people not authorized to be in the country in the first place and that Congress had not clearly forbade states from imposing additional restrictions.

The court found three provisions of SB 1070 unconstitutional: Section 3, which made it a state crime for aliens in the state not to register with the federal government; 5C, which imposed criminal penalties for illegal immigrants in the state working or looking for a job; and Section 6, which allowed a policeman to arrest someone without a warrant if there is probable cause to believe that that person is illegal and can be deported for committing “a public offense.” None of these provisions is inherently unconstitutional. They are simply decisions that must be made by the federal government.

Striking down Section 3 was the least controversial part of the ruling, and it was found unconstitutional by a 6-2 margin. The five justices in the majority, (Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) were joined by Justice Samuel Alito in invalidating this part of SB 1070. This was a relative gimme. There is longstanding precedent going back to a case called Hines v. Davidowitz from the World War II era that alien registration is a solely federal issue. In this case, the state was attempting to impose its own separate legal penalty for a violation of federal law. Thus, the court found that this was an unconstitutional invasion of Congress’s power and therefore invalid.

Section 5 was slightly more complicated. It has long been against federal law for an employer to hire an illegal immigrant, but there have never been criminal prohibitions against an illegal alien looking for work. Instead, it is a civil violation that renders an alien ineligible to obtain legal residency. In examining this background of federal law, the court found that Arizona’s attempt to make it a crime for an illegal to apply for work went against the federal government’s longstanding policy in this area. Congress had found such sanctions to be inappropriate and had made a clear decision only to impose criminal penalties on employers. So Arizona could not overturn this federal regulatory system through its own laws.      

Finally, the court also found Section 6, which allows state officers to arrest illegals without a warrant whom they have probable cause to believe are removable, to be in conflict with federal immigration policy. As Justice Kennedy’s majority opinion worries, “this would allow the State to achieve its own immigration policy” by removing people who the federal government has decided should stay in the country as matter of policy—like those, for example, covered by President Obama’s executive order last week. Thus, the court found that the law was also preempted by existing federal immigration law.

The court did unanimously uphold section 2B of Arizona’s law, which requires state and local police to make “ a reasonable attempt . . . to determine the immigration status” of anyone stopped or detained who there is a reasonable suspicion to believe is in the country illegally. Many Latino advocacy groups were indignant about this law, stating that that it would give police free rein to harass Hispanics. However, the court did not address that issue—the law has not yet been enforced so there is no history of discrimination to review. Instead, the only question was whether this policy would interfere with Congress’s regulation of immigration. The court found it did not, for now. After the law had not been implemented and state courts had not interpreted how it would be read. But Kennedy made clear “this opinion does not foreclose other . . .challenges to the law . . .after it goes into effect.”

Although only the majority opinion is law, the dissent of Justice Antonin Scalia is worth noting. In it, the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists).

Scalia in fact spends several pages criticizing, on policy grounds, Obama’s recent executive order on immigration. There are plausible legal arguments to make against the president's decision to essentially enforce a partial version of the DREAM Act by executive order, but it was not an issue in the Arizona case. Scalia's broadside is pure digression.

The court may have returned to settling basic constitutional issues on broader lines in Arizona v. United States, but Scalia’s explicitly political dissent serves a warning to observers of the court against reading too much into the consensus.

The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds.