Scalia Dissent Reads More Like Blog Post
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.”