Today, the Supreme Court agreed to hear an appeal from the Ninth Circuit decision of April 11th holding the then new Arizona immigration statutes unconstitutional due to federal preemption. Of some interest,
Justice Elena Kagan will not take part in the Arizona case, presumably because of her work on the issue when she served in the Justice Department.
Arguments probably will take place in late April, which would give the court roughly two months to decide the case.
Among the principal issues before the Court is whether federal immigration laws, which the Arizona statutes sought among other things to enforce, were preempted by those federal laws making the Arizona statutes unconstitutional. As noted here, Judge Bea of the Ninth Circuit
wrote a well-deserved acerbic concurring, but in reality dissenting, opinion. He quoted Lewis Carroll’s word master Humpty Dumpty and compared the court majority to him:
The majority has apparently mastered its Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t –
till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful
tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
According to Judge Bea, the majority’s strained interpretation of legislative intent attributed to the Congress the intent of those later charged with enforcing federal immigration laws, as though the Congress had presciently divined and approved the subsequent interpretations of the enforcers. Judge Bea quite correctly observed:
It is Congress’s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country. (emphasis in original)
With Justice Kagan not participating, there may be a decent chance that the Supreme Court will disagree with the Ninth Circuit majority.