The Court’s three most conservative Justices, Antonin Scalia, Clarence Thomas and Samuel Alito, each filed separate dissents. Scalia and Thomas both would have upheld the entire law, Justice Alito, all but the aforementioned one provision. Each Justice filed a separate dissent, suggesting disagreement over the legal bases for upholding the state statute.
Justice Antonin Scalia contended the court had run roughshod over Arizona’s right to enforce order within its own borders. “Arizona has moved to protect its sovereignty–not in contradiction of federal law, but in complete compliance with it,” Scalia wrote. “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.”
Thomas joined Scalia in a partial dissent, contending that “federal immigration law does not pre-empt any of the challenged provisions of SB 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the ‘ordinary meaning’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.”
Justice Alito characterized the two provisions of the law where he departed from the majority as a “remarkable” attack by the federal government. “The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force[.]”
Unsurprisingly, the split decisions had both sides claiming victory and defeat. Republican Arizona Governor Jan Brewer, who released a statement yesterday indicating the state would enforce what is left of the law, called it a “victory for the rule of law.” “After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution,” she said. Yet she expected litigation on the remaining provision to continue. “Our critics are already preparing new litigation tactics in response to their loss at the Supreme Court, and undoubtedly will allege inequities in the implementation of the law,” she said. Brewer also issued a warning to the state’s law enforcement officials, cautioning that they “will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”
President Obama released a statement saying he was “pleased” with the Court’s decision to block that provisions it did, but he remained “concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally…No American should ever live under a cloud of suspicion just because of what they look like.”
Republican presidential candidate Mitt Romney weighed in as well. “Today’s decision underscores the need for a President who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy. President Obama has failed to provide any leadership on immigration. This represents yet another broken promise by this President,” he said, reminding Americans of Mr. Obama’s pledge during the 2008 election campaign that he would offer an immigration initiative during his first year in office.
Yet Mr. Romney also came out swinging against the Court’s overall decision. “I believe that each state has the duty–and the right–to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities,” he contended. Rep. Lamar Smith (R-TX) chairman of the House Judiciary Committee agreed, noting that Monday’s ruling “essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration.”
Senate Majority leader Harry Reid (D-NV) was pleased with the overall decision, even as he contended the remaining provision “will lead to a system of racial profiling.” Sen. Chuck Schumer (D-N.Y.) echoed Reid’s sentiment. “The Court is sending a stern warning to Arizona that the provision allowing local law enforcement to check people’s immigration documents cannot be implemented in a discriminatory or draconian way, or it will be thrown out like the rest of the law,” he said in a statement.
Since SB1070 clearly prohibits racial profiling — and the Supreme Court agrees — this is a warning that serves more for political demagoguery than as a genuine “word to the wise.” Nonetheless, the president, through executive fiat, appears to have cornered Arizona, and perhaps other states as well. Even if more illegal immigrants are identified and made known to the federal government in virtue of what remains of SB1070 (identified during the commission of crimes, mind you) it will be to no end, as the Obama administration made abundantly clear as soon as the Supreme Court ruling was announced. Unfortunately, lawlessness and crass political calculations remain the status quo of America’s illegal immigration policy.
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