Justice Antonin Scalia certainly got it right when he wrote in his incisive opinion concurring in part and dissenting in part from the opinion of the majority in the Arizona illegal immigration case, that “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.”
What Justice Scalia was really saying is that the reason Arizona was before the Court was not because state officials acted in a lawless manner, but because President Barack Obama was acting in a lawless manner.
Yesterday’s Supreme Court ruling on Arizona’s state efforts to enforce federal immigration laws did not provide the clarity on the issue many Americans expected. In large measure, this was because the Court did not really address the central issue in the case.
For an answer to that question, we must look not to the majority of the Supreme Court, but to Justice Antonin Scalia.
After delving into the sources and limits on the sovereignty of the individual states, Scalia concludes that while regulation of immigration is a federal power, states have an inherent sovereignty that was not extinguished by adoption of the Constitution -- and regulation of immigration in a manner consistent with federal law is constitutional.
He then goes on to write that, “What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law – whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority.” Emphasis added.
Scalia then notes that the federal government and the majority of the Supreme Court did not claim the Arizona law conflicted with federal immigration law in that manner.
And here’s where Justice Scalia brings the historical and legal arguments about state sovereignty verses federal sovereignty home to the reality of our present illegal immigration crisis, “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 [Constitutional] Convention would have rushed to the exits.” Emphasis added.
Put simply, the central issue in the case was not really about immigration, it was “What do states and American citizens do when the federal executive branch won’t enforce the laws Congress passes?”
The problem Justice Scalia identified, and that the majority of the Supreme Court ducked, is not that Arizona’s illegal immigration law conflicts with the federal immigration laws passed by Congress, because all agree they didn’t. The problem is Arizona’s illegal immigration law conflicts with Barack Obama’s desire not to enforce the federal immigration laws passed by Congress.
What was Obama’s response to the Supreme Court’s decision? More lawlessness.
The ink was hardly dry on the Supreme Court’s opinion when Obama and Homeland Security Secretary Janet Napolitano announced they were suspending the cooperation on immigration enforcement with Arizona.
Our constitutional system of government was arranged by the Framers to protect America from the despotism and oligarchy that brought down republics in ancient times, but it does less well in protecting us from a President who refuses to enforce laws our Representatives in Congress have passed. For that, we must look to what James Madison wrote in Federalist 44: “in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”
November 6, 2012 is the date of the next federal election and the day we must, through the election of more "faithful representatives," annul the acts of this usurper – it can’t come soon enough.