Tuesday, June 26, 2012

Justice Scalia's Mind-Boggling Dissent


As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty.

. . . Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration

. . . They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)

. . . What I do fear—and what Arizona and the States that support it fear — is that “federal policies” of non enforcement will leave the States helpless before those evil effects of illegal immigration. . .

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. 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.

. . . 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.

. . . 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.

~ Justice Antonin Scalia in a blistering minority dissent over the rollback of Arizona's immigration laws

Complete Supreme Court Opinion on Arizona and Dissenting Views


Scalia Dissent Reads More Like Blog Post
~ Jeff Fecke on Care2Care Blog

Scalia: If States Can Resrict Those Freed Slaves, Then Why Not Messicans?
~ Headline on Wonkette

Scalia has finally jumped the shark....He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.
~ Adam Winkler, constitutional law professor at UCLA

It struck me as so much crying in the wilderness, to be honest. His view is pretty jurisprudentially extreme, and I think it could likely be the last time that Scalia gets to weigh on in immigration issues during his court tenure.
~ Peter Spiro on WSJ Blog

You don't have to turn to Fox News to hear dubious right-wing talking points on legal issues, you can now hear it in Justice Scalia's rhetoric as well.
~ Media Matters ~ "The Fox-Scalia Echo Chamber"

Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.
~ Paul Campos in Salon

After twenty-five years on the Court, Scalia has earned a reputation for engaging in splenetic hyperbole—but he outdid himself this time.
. . . according to Scalia, if Arizona had known what was coming from his colleagues yesterday, they never would have joined the United States. No other state would have either. The Arizona ruling, in Scalia’s telling, would have destroyed the country even before it was born.
Jeffrey Toobin in The New Yorker

...for the conservatives, and for Scalia most of all, legal propriety is absurdly quaint. He doesn’t answer to a nation. He answers to a cadre, a vanguard, of which he is a cherished member, which is about as likely to say no to him as the College of Cardinals is to the Pope, and to which all outside criticism is the chirping of crickets. The crickets will be chirping awfully loudly in the coming days, and I hope at least that this self-satisfied martinet gets an ear-splitting headache.
~ Michael Tomasky in The Daily Beast

Would this Court, voting as it does today, have upheld the 1964 civil rights bill, the statute which declared it illegal to refuse access to someone because of race, at a restaurant, hotel or gas station restroom? Would Scalia, Thomas, Alito and Kennedy have approved such a decision or would they have joined in the dissent? Well, maybe Kennedy would have.
The fact is we have the most conservative Court since the 1930s and maybe more conservative than that. These Justices, led by Scalia, believe in original intent. They want to judge cases based on how the Founding Fathers would. Well, the Founding Fathers, need I remind us all wrote in slavery into the Constitution. It took a civil war and a 13th amendment to get it out.
~ Chris Matthews on Hardball, via RealClearPolitics

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