The PJ Tatler

Scalia Rips Obama in Arizona Immigration Law Dissent

About 20 pages into his dissent in the SB 1070 case handed down today, Associate Justice Antonin Scalia takes a very dim view of President Obama’s recently announced amnesty-lite for young illegal aliens.

“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,” Scalia writes, noting that the Obama administration announced a major executive branch policy change while the Arizona law was before the Supreme Court. After describing the criteria by which young illegal aliens may qualify for the administration’s amnesty, Scalia continues: “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.7 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.”

From there, Scalia moves in for the kill: “The Court opinion’s looming specter of inutterable horror—'[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,’ ante, at 10—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 would 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?”

Scalia asks if the states would have ever even joined the union if they had contemplated the federal government taking the power to enforce immigration law away from the states and then purposefully leaving their borders with another country undefended. He concludes that the union could not have been built that way: “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.”