A Moral Victory, for Now

by John O’Sullivan

My guess is that Arizona scored a moral victory against its hysterical critics in the administration and the media when the Supreme Court upheld the most controversial provision of its state law designed to reduce illegal immigration and its malign effects.

Why guess? Why not contented certainty? Well, as Ed Whelan and others have pointed out, the Court’s approval of the “show me your papers” provision is so hedged about with qualifications — notably that its constitutionality will hinge in part on how it is enforced — that its surviving later legal attacks is far from certain. Indeed, the Court’s decision more or less invites such attacks and thus the prospect of a continuing expensive legal imbroglio for the state.

Secondly, the surrounding political atmosphere is extremely hostile to effective immigration-law enforcement. What! Surely polls show that the American public is strongly in favor of such enforcement? They do. But the judicial elites, corporate America, the media, the administration, and the Democratic party all reveal a strong bias against it. How else can we explain that a law expressly and skillfully crafted to be in conformity with federal law was overturned by lower courts, treated in the media as a scandalous expression of racism, and opposed by the Department of Justice in wildly extravagant terms. (Two of the contributors to NRO’s symposium are almost equally hostile.) One answer to that question is that America is increasingly a government of judges rather than one of laws. The laws passed by Congress or the States are becoming a kind of opening speech for the prosecution to which NGOs reply for the defense and the courts deliver the final verdict. And the result is “laws” bearing a suspicious resemblance to the majority political opinion of Ivy League law schools and the Bar Association.

I agree with Ed Whelan on the significance of the final paragraph of Justice Scalia’s dissent:

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.

If this is in doubt, what other laws can be certain of resisting judicial imperialism?

But the game is not necessarily lost. What follows from this is the importance of other states following the example of Arizona. There are limits even to judicial arrogance. And the voters should make it clear through their representatives at the state and federal levels that those limits have been reached and over-reached.