Kennedy and Roberts Join Jihad on States’ Sovereignty

The Last Sane Men?

Reading through the tortured legal arguments of the majority of the Supreme Court, in the case of Arizona v. United States, it’s clear to me that the court is now stacked to a majority with dullards.  This ruling is unconscionable, and makes no constitutional sense whatever.  This is the inevitable result of our cultural rejection of the rule of law.  The absolutely dictatorial claim of prosecutorial discretion on the part of the Obama administration in enforcing the immigration laws of the United States is just the beginning.  Now enters a Supreme Court to weigh in on the issue in such a manner as to confound the will of the people, subvert the rule of law, and turn aside long standing precedents, or to misapply them in a manner that defies all logic.  With this as our backdrop, we must wonder why we bother with a constitution at all.

Among the eight justices ruling(Kagan having recused from the case due to her participation in it while serving as  Solicitor General,) only three seemed to have even the vaguest idea what is at stake in the case, or to bear in mind any context of what our constitution actually provides.  If it were not for the minority opinion of Antonin Scalia, Clarence Thomas and Samuel Alito joining him in dissent, there would be no indication whatever that this had been the ruling of an American court.  If this is any indication of the nature of our court as currently comprised, I suggest we get rid of the lot, keeping the three dissenters in this ruling, but otherwise starting from scratch.

Anthony Kennedy has always been a quirky, flaky, and vacuous, but to see Chief Justice John Roberts rule in a fashion befitting a leftist ideologue is incomprehensible, and signifies the worst decision since the abomination that was the Kelo decision. Ruth Bader-Ginsburg, Stephen Breyer, and Sonia Sotomayor are incompetent leftist hacks, and they ruled precisely as one would expect.  At stake in the case had been whether the State of Arizona could act to enforce federal immigration law, even when the Federal Government fails in that duty, or determines not to do its duty.  Apparently, according to these five justices, there is no distinction among the fifty states, and there is no sovereignty among them.  According to these five justices, the individual states are merely servants of the Federal Government, whomever may run it at any particular time.  Justice Scalia’s dissenting opinion nails every issue, and we should take a moment to consider what it is that Scalia has said.  His arguments are clear-headed and succinct, if lengthy and thoroughly considered.  You can read the decision in its entirety here.  Scalia’s opinion begins on page 30 of the PDF.

He begins this way:

The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

There is no way around this basic issue Scalia raises, and yet five of his colleagues on the court seem to have been oblivious to reason.

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. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases,or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).

Here, Scalia points back to the philosophical principles under-girding not only immigration law, but indeed all law insofar as it is to be implemented and enforced by a sovereign.  Here, a sovereign is defined, and it is clear that Scalia recognizes the assault on the very concept underlying the majority opinion.  He immediately delved into the constitutional justifications for siding with the Arizona statute, and he pointed out the distinctions one must consider in ruling on such a matter.  Clearly, Scalia lives and breathes the Constitution, while the majority in this opinion are shallow, tinkering fools.  As usual, Scalia offers tremendous logic to the matter, explaining that the Federal jurisdiction over the matter does not exclude the States’ jurisdiction, except perhaps in such case as there is a conflict between the two. Fortunately, as Scalia notes, there is no conflict between the Federal statute and the Arizona statute:

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration — and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted).Implicit “field preemption” will not do.

Scalia makes it plain that Arizona also should have the right to make their law more restrictive in certain respects:

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

Perhaps the most scathing portion of his dissent arrives in this paragraph:

Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B);and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.(emphasis added)

This should serve as a rebuke to the other justices, if any of them gave a damn, but it’s clear that Chief Justice Roberts isn’t interested in logic.  Has he too become a DC  cocktail party gadfly, or has he simply slipped a mental gear?  Is he seeking favor with the “in” crowd?  I’ve lost all hope that Justice Kennedy will ever be a philosophically consistent jurist, and in fact, I don’t believe he observes any particular philosophy apart from whatever may suit him at the moment, but I hadn’t expected the Chief Justice Roberts would ever join that crowd.

It’s clear to me that a narrow third of the court fully understands the implications of the questions of State sovereignty, and the divisions of power constructed within our federal system.  Justice Scalia properly frames this as a matter of Arizona’s sovereign power, and rightly calls into question the woeful lack of observance of that characteristic by the ruling majority in this case.  He also recognizes it might be proper for Arizona to repeatedly detain and arrest people who have not been given appropriate privilege to remain in the United States, and punish them accordingly:

The Court raises concerns about “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that  Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. 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 §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)

This should have been the majority opinion, and it punctuates the reasons why I have no confidence in Mitt Romney, should he become president.  There is little doubt that he will continue the work of his predecessors in appointing justices who will further undermine individual liberty and States’ sovereignty.  The majority opinion that will now hold forth as precedent is an act of nearly criminal absurdity.  If only we could clone Justices Scalia, Alito, and Thomas, we might have a chance to save the Republic, but it seems instead that the only thing to be duplicated in Washington is grotesque Federal government operating in absolute disregard and open contempt of the Constitution, a founding document that now seems on the verge of irrelevance.  If the best we can manage is a Supreme Court that will not stand in firm majority for the founding principles on which our constitution rests, what good is it anyway?  This cannot end well.  When you combine the effects of the ruling in this case with the Obama administration actions on immigration policy, it’s clear that we will not maintain our country much longer.  Thank Chief Justice Roberts and associate Justice Kennedy.  These are two who ought to have known better, as Justice Scalia’s dissent should make clear.

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  • carmtom13

    Great post Mark. I thought Justice Scalia was absolutely right. I was very surprised at Justice Roberts going against the Arizona law. It makes you wonder. Governor Brewer was right in her comments about the decision. Doesn’t a state have the right to protect its people?

  • the unit

    Often here in the swampy south I see a old “living” tortoise trying to cross the road.  I stop and point him/her back the other way. Don’t know it he/she goes back to safety.   Try to do same with the old “living” Constitution, like me set in it’s ways (living… because through the years I learned old ideas, ethics, and morals need to live on).  Don’t want it to become like the southern definition of  possum,  ”a flat animal that sleeps in the road.”

  • Kathie

    What good Is a Constitution our high court Ignores?
    I would ask, What good is a high court that the states and citizens ignore?

  • another_engineer

    Look to who appoints them, and you have your answer.