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Scalia Dissent Reads More Like Blog Post

Scalia Dissent Reads More Like Blog Post

Justice Antonin Scalia’s dissent in Arizona v. United States has drawn notice for what it is not: a calm, reasoned analysis of thorny legal issues surrounding Arizona’s anti-immigration law.

Scalia’s argument was angry, contradicted his own past rulings, and even brought up President Barack Obama’s recent change in deportation policy to allow children of undocumented immigrants to stay in the country.

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.

Scalia also found it mind-boggling that anyone could doubt that immigration is causing horrible, horrible problems for the God-fearing people of Arizona.

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Scalia’s dissent held that Arizona was the equivalent of a sovereign nation. “As a sovereign, Arizona has the inherent power to exclude persons from its territory,” Scalia wrote. But he qualified the statement, saying that right was “subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” As the case turned on whether Arizona’s law interfered with federal laws — laws imposed constitutionally by Congress — the statement seemed almost a non sequitur.

Scalia goes so far as to argue that the majority’s ruling in this case would have caused the Union to dissolve.

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. [...] Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.

As Scalia himself acknowledges, the Constitutional Convention was convened because state sovereignty was causing serious problems for the only somewhat-United States. The resulting constitution — the one Scalia ruled under — was designed to consolidate more power in the hands of the federal government, and change the states from sovereign entities in a loose confederation to parts of a unified country.

Scalia also did not note that Arizona, which entered the Union in 1912, was not a party to the Constitutional Convention.

“Scalia makes no attempt to conceal the political values that motivated this contradiction with his past jurisprudence,” said Scott Lemieux in an analysis of the case.

Adam Serwer agreed. In his analysis of the case, he  joked, “I had no idea that the original meaning of the Constitution and federal statutes could be best discerned by listening to The Michael Savage Show.”

Related Stories

Immigration Ruling Shows Limits of States’ Rights

Anti-Immigrant Bills Faltering, Even in Arizona

Alabama Immigration Law Upheld, Supreme Court Intervention Likely

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Image Credits: Donkey Hotey, Jeff Kubina, Jeff Fecke

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71 comments

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9:01PM PST on Feb 2, 2013

Thank you.

9:00PM PST on Feb 2, 2013

Thank you.

9:00PM PST on Feb 2, 2013

Thank you.

8:59PM PST on Feb 2, 2013

Thank you.

10:54AM PDT on Jun 29, 2012

Robet K.-Well said, take another green star out of petty cash, on me!

8:50AM PDT on Jun 29, 2012

All the idiots on the court love to ignore facts. The people who wrote the constitution were also in large the ones who wrote our original laws. What they had to say about corporations should guide the court. They required corporations to disband with the death of its' fouder, they required them to put the customer before profits and if they failed to do so, they would lose their charter and be closed down. They disallowed corporations to influence politicians which led to the term "lobbying" as they had to meet with politicians in places like hotel lobbies because they rightly figured that allowing corporate contact with politicians would lead to bribery and the corruption of politicians. Even conservative president John Adams pushed the inheritance tax because he knew and said that allowing a person to acquire dynastic wealth could destroy democracy. We currently see proof of that with the Koch Brothers, Sheldon Adelson etc. Currently there is not a single Republican in Washington that hasn't been bought and paid for and who doesn't do the bidding of their owners..

5:33AM PDT on Jun 28, 2012

as much of an assh*le thomas is at least he keeps his yap, shut

1:14PM PDT on Jun 27, 2012

LD B.-You are exactly right that is what Scalia has always done. That is why his decisions are headache inducing pieces of crap.

11:00AM PDT on Jun 27, 2012

Sherri B, there are 23 Democrats up for reelection and only 4 Republicans, so a super majority is almost impossible, but if the adults hang on to it there was encouraging news last month. Reid admitted that he should have listened when he was told he should get rid of the filibuster rule. It just takes him saying it's off and the VP to okay it. However it can only be done at the beginning of the new term.

11:04PM PDT on Jun 26, 2012

Scalia is clearly showing the signs of drinking too much InsaniTea, that Republican/Teabagger drink of choice. Since retirement or impeachment are the only 2 options, I sure hope he retires soon, very soon. With the current Congress, there is not a chance in hell that he'll be impeached.

Although, what about a medical "retirement"? Seems he argued against states' rights in the Montana case, yet argued for states' rights in the Arizona case. Is he all there mentally?

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