The Corner

Scalia’s Blistering Dissent

Justice Antonin Scalia wrote a blistering dissent to the just-announced majority decision for Arizona v. United States, which struck down three of the four provisions of the controversial Arizona immigration law passed in 2010. While the Court did uphold the key provision requiring law-enforcement officers to check the immigration status of anyone detained or arrested if “reasonable suspicion” exists that the person is in the country illegally, Scalia maintained that the law should have been upheld in its entirety on the basis of a state’s sovereign rights:

Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.

“That power to exclude,” writes Scalia, “has long been recognized as inherent in sovereignty.” He briefly outlined the pre-Constitution and early post-Constitution history of immigration enforcement (“After the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so.”), then offered two scenarios in which regulation of immigration by the states is excluded by the Constitution:

when (1) it [state regulation] has been prohibited by a valid federal law, or (2) it conflicts with federal regulation — when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

The first is not applicable here: Congress has not “unequivocally expres[sed] its intent to abrogate” state enforcement rights. Scalia spends the bulk of his dissent showing that none of the Arizona law’s four provisions fits the second scenario, either.

#more#Discussing Section 2 (that provision upheld by the Court), Scalia notes that the attorneys for the federal government conceded that the section is in full compliance with existing law: “That concession, in my view, obviates the need for further inquiry.” However, the federal government called upon the Court to overturn the case based on speculation. Scalia quotes United States v. Salerno (1987) in response: “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.”

Responding to contentions over Section 6, which would allow a law enforcement officer to arrest a potentially “removable” person without a warrant, Scalia writes that Arizona is, again, in compliance with federal policy and the Constitution:

The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy” — including a more rigorous enforcement policy — so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States.”. . . It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. [italics original]

Addressing Arizona’s frustration with federal inaction:

The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State’s whole complaint — the reason this law was passed and this case has arisen — is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.

Responding to arguments against Section 3, which would make a current federal law punishable under Arizona state law:

The Court points out . . . that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. [italics original]

Responding to the Court’s “fear” that Section 3 would cause Arizona to “frustrate federal policies”:

It holds no fear for me, as it does for the Court. . . . That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear — is that “federal policies” of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition. [italics original]

In considering Section 5, Scalia disagreed with the Court that Congress’s refusal to punish certain violations constitutes a prohibition against states doing so:

The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. . . . To tell the truth, it was most likely expressive of what inaction ordinarily express: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.”

Responding to arguments from the federal government’s excuse of “scarce enforcement resources”:

Of course 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. . . . Of course 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. [italics original]

Scalia also cited the DREAM Act as evidence that the federal government cannot plead “scarce enforcement resources” as an excuse:

It has become clear that federal enforcement priorities — in the sense of priorities based on the need to allocate “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 under the age of 30. . . . The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. [italics original]

“Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” Scalia ultimately asks:

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.

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. I dissent.


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