Posted by Tina
A bench statement by Justice Scalia is posted below. It’s easy to read and understand. The takeaway sentence:
The essence of the ruling is that the federal government is not bound to enforce federal law, and Arizona as a sovereign state can not implement federal law to control their immigration problems.
Let me know what you think.
June 25, 2012 – Justice Antonin Scalia
Bench Statement
No.11-182 -Arizona v. United States
For almost a century after the Constitution was ratified, there were no federal immigration laws except one of the infamous Alien and Sedition Acts that was discredited and allowed to expire. In that first century all regulation of immigration was by the States, which excluded various categories of would-be immigrants, including convicted criminals and indigents. Indeed, many questioned whether the federal government had any power to control immigration–that was Jefferson’s and Madison’s objection to the Alien Act.
The essence of the ruling is that the federal government is not bound to enforce federal law, and Arizona as a sovereign state can not implement federal law to control their immigration problems.
The States’ power to control immigration, however, has always been
accepted, and is indeed reflected in some provisions of the Constitution. The provision that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” was a revision of the provision in the Articles of Confederation which gave those privileges and immunities to “inhabitants” of each State. It was revised because giving that protection to mere “inhabitants” would allow the immigration policies of one State to be imposed on the others. Even that revision was not thought to be enough, because the States were not willing to have their immigration policies determined by the citizenship requirements of other States. Hence the Naturalization Clause of the Constitution, which enables the federal government to control who can be a citizen.
Of course the federal power to control immigration was ultimately accepted, and rightly so. But where does that power come from? Jefferson and Madison were correct that it is nowhere to be found in the Constitution’s enumeration of federal powers. The federal power over immigration cannot plausibly derive from the Naturalization Clause. Not only does the power to confer citizenship have nothing to do with the power to exclude immigrants, but, as I have described, the Naturalization Clause was a vindication of state rather than federal power over immigration.
Federal power over immigration comes from the same source as state power
over immigration: it is an inherent attribute–perhaps the fundamental attribute– of sovereignty. The States, of course, are sovereign, the United States being a Union of sovereign States. To be sovereign is necessarily to possess the power to exclude unwanted persons and things from the territory. That is why the Constitution’s prohibition of a State’s imposing duties on imports made an exception for “what may be absolutely necessary for executing it’s inspection Laws.” Thus, this Court’s cases have held that the States retain an inherent power to exclude. That power can be limited only by the Constitution or by laws enacted pursuant to the Constitution, The Constitution, as we have seen, does not limit the States’ power over immigration but to the contrary vindicates it. So the question in this case is whether the laws of the United States forbid what Arizona has done.
Our cases have held, with regard to claimed federal abridgment by law of
another inherent sovereign power of the States–their sovereign immunity from suit–that the abridgement must be “unequivocally expressed.” The same requirement must apply here; and there is no unequivocal congressional prohibition of what Arizona has done. It is not enough to say that the federal immigration laws implicitly “occupy the field.” No federal law says that the States cannot have their own immigration law.
Of course the Supremacy Clause establishes that federal immigration law is supreme, so that the States’ immigration laws cannot conflict with it–cannot admit those whom federal law would exclude or exclude those whom federal law would admit. But that has not occurred here. Arizona has attached consequences under state law to acts that are unlawful under federal law–illegal aliens’ presence in Arizona and their failure to maintain federal alien registration. It is not at all unusual for state law to impose additional penalties or attach additional consequences to acts that are unlawful under federal law–state drug laws are a good example. That does not conflict with federal law.
In sum, Arizona is entitled to impose additional penalties and consequences for violations of the federal immigration laws, because it is enaiiled (entitled?) to have its own immigration laws, As my opinion describes in more detail, however, most of the provisions challenged here do not even impose additional penalties or consequences for violation of federal immigration laws; they merely apply stricter enforcement. The federal government would have us believe (and the Court today agrees) that even that is forbidden. The government’s brief asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely”
But there is no reason why the federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift, Arizona asserts without contradiction and with supporting citations the following: “[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona, Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona,” Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement–or, even worse, to the Executive’s unwise targeting of that funding?
But leave that aside. It has become clear that federal enforcement
priorities–in the sense of priorities based on the need to allocate so-called 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. The husbanding of scarce enforcement resources can hardly be the justification for this, since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program, which will require as many as 1.4 million background checks and biennial rulings on requests for dispensation. The President has said 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 laws. 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 federal immigration law that the President declines to enforce boggles the mind.
The Court’s opinion paints what it considers a looming specter of inutterable horror: “If 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” That seems to me not so horrible and even less looming. 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 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? Imagine a provision–perhaps inserted right after Art. I, 8, ci. 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 from Independence Hall.
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. 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 simply unwilling to do so, Arizona has moved to protect its sovereignty–not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. For these reasons, I dissent.
God Bless Arizona. Any chance we can get the federal government to ignore California?
Toby, that all depends. The solution starts in Sacramento and it is laid out for us in history and in the Constitution. The important dates/locations to remember are: April 19, 1775, Lexington, April 19, 1775 Concord, July 4, 1776, 520 Chestnut Street, Philadelphia, Penn., 1846 – Sonoma, CA. January 10, 1861, Morris Island, S.C.
Constitution: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,…”
Man knows no master save creating Heaven,
Or those whom choice and common good ordain. James Thomson, “Liberty” 1735
“Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death!” — Patrick Henry
You have listed 4 revolts of importance to the American way, Hopefully the voters will peacefully add 11/6/2012 to the list.
I can not believe the double talk from Justice Scalia ‘ The essence of the ruling is that the federal government is not bound to enforce federal law’ It sounds like he is giving Government the way to stone wall anything the current administration disapproves of, just by creating a Federal law they do not intend to enforce.
I was 1/2 kidding. Seriously, what the federal government is doing to Arizona runs contrary to the original reason for the federal government. If Washington wont protect our citizens and our borders, what is is the point of paying taxes or bothering with laws or Rights? At some point we stop being the USA and become the usa, just another banana republic. That point is near, some readers of this blog will cheer and drink to that. God bless Arizona, they are fighting enemies on two fronts.
Scalia is eloquent and precise as always.
Regarding Justice Scalia’s statement, “The essence of the ruling is that the federal government is not bound to enforce federal law.”
Justice Scalia is simply telling it like it is and elucidating one of the reasons for his dissent on the ruling.
There are two simple and direct solutions: Elect a president who …
1) Will either use the bully pulpit to champion legislation that does away with immigration law.
or
2) Has the moral character, sense of responsibility, integrity, and will to enforce immigration law to the best of his ability.
I know which path I prefer.
What we have now in the executive is a pathetic weasel who offers no solution, no clear vision, and who uses and abuses illegal immigration issues in an attempt to gain political favor amongst legal and illegal voters of a specific ethnic group. We have a President who, rather than tackle the thorny issues of illegal immigration, uses the force of the federal government to attack sovereign states and their citizenry in order to pander to a voting block.
In the spirit of the non-cooperation and animus that the Obama administration has shown towards 5 southern states and Arizona in particular, I suggest that Arizona do anything it damn well pleases to try and reasonably control and interrupt the seriously dangerous and destructive trafficking in drugs and human beings from Mexico and tell Obama, Holder, and Napolitano to take a long walk off a short pier.
Scalia is an activist judge. He has no business on the Supreme Court. Period. I’m so glad to see that not every conservative is willing to carry Scalia’s poison water.
Justice Richard Posner has the courage to speak. Posner is a very respected conservative and one of the most cited legal scholars of our times.
From his contribution at Slate, this sums up my thoughts perfectly:
“In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.”
Arizona is not the only state that borders Mexico. I think California and Texas might think that Arizona doesn’t “bear the brunt” of illegal immigration.
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/supreme_court_year_in_review_justice_scalia_offers_no_evidence_to_back_up_his_claims_about_illegal_immigration_.html
Zeds comment about ‘Justice Scalia is simply telling it like it is and elucidating one of the reasons for his dissent on the ruling’. Yes Zed I agree with what your saying, I as I read more of your comment I think we are on the same page, your point is correct and My point is this will open a new door for ANY administration to thwart a sovereign states ability to provide protection for its citizens, especially if people like Obama use this executive power solely for a few votes from a target group of law breakers.
Also Scalia said that, “Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?”, knowing full well by his first comment that the party in power can create Federal law to prevent enforcement of Federal law as it see fit.
Interesting, Princess is carrying poisoned water for the posing Posner.
Arizona, technically, may not be bearing the brunt of illegal immigration but it is a major corridor for human and drug trafficking.
Arizona is bearing the brunt of an uncooperative, arrogant, corrupt and aggressive executive administration.
Judge Scalia is not incorrect to state that “Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.”
They are also under siege in the form of frivolous and punitive lawsuits and threats of lawsuits by the federal government.
Moreover Posner makes his own remarkable, polarizing, politically charged statement: “Illegal immigration is a polarizing political and social issue. Many people hate illegal immigrants.”
Huh? Since when was enforcing immigration and anti-drug smuggling laws about hate? It is about civil security, law and order, and suppressing what is often dangerous criminal activity.
Posner is a hyperbolic poser spreading his own brand of activism. His hypocritical commination of Justice Scalia’s dissent is scurrilous and ludicrous.
It seems quite appropriate that his screed appears in Slate.
Katie Pavlich, who has written a book about Fast and Furious, refutes the Fortune Magazine article. Read it at TownHall:
http://townhall.com/tipsheet/katiepavlich/2012/06/27/fortune_magazine_tries_to_tell_the_truth_about_fast_and_furious_fails_miserably
Her rebuttal ends with a statement issued by Becca Watkins, House Committee on Oversight and Government Reform:
The Constitution neither authorizes nor allows the several Sates to act as de facto law enforcement agencies of the Federal Government.
Juris the Prudent | June 27, 2012 5:41 PM | Reply
The Constitution neither authorizes nor allows the several Sates to act as de facto law enforcement agencies of the Federal Government.
So? Who is is arguing that?
The Constitution may not authorize, but the question of whether it allows is subject to reasoned debate.
Posner is not a poser at all. He is a very well-respected conservative. To attack him because you disagree with him and ignore his credentials and respectable career is ridiculous. His is an opinion worth hearing even if we disagree with it.
Conservatives are supposed to be against activist judges. When did we decide they were okay if we agree with them? What the heck?
Scalia is wrong. And as a former resident of San Diego I do not appreciate having to hear endlessly about poor Arizona. California has it just as bad if not worse.
The Arizona law did/does not require any officer to act as “de facto law enforcement agents of the federal government”.
Representatives from the original several states formed the federal government for a limited purpose as authorized in the Constitution…we are the United States of America not the subject states of the federal kingdom!
Officers and representatives of both the federal government and the states serve the people and swear an oath to uphold the law.
The position of this administration, with the courts permission in this ruling, is that law enforcement officers should ignore the law and break thir oath…as they have broken it. Examples:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true and faithful allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”
“Faithfully discharge the duties of the office”…not one word about making it up as you go along…or ignoring laws to win over a particular voting block…or using the law selectively to punish states where the leadership is of a different party.