RETROACTIVELY RIGHT

Posted in Rants on June 27th, 2012 by Ed

His defenders have always described Justice Scalia as someone with whom you will not always agree but who has a deep, abiding commitment to the Constitution and a powerhouse intellect with which to defend it. The man is neither an idiot nor a mere partisan, the argument goes, and therefore he commands the respect of his political opponents. Scalia's detractors have argued that he is a partisan hack who speaks of the Constitution and the intent of its authors but is perfectly willing to go hog wild making things up if it suits his predetermined conclusion. It is possible that both sides are correct here. Let us give him the benefit of doubt and agree, for the sake of argument, that in his younger days the Judge was a crusader for a strict reading of the Constitution. Over time, though, as age and the insulated cocoon of the Supreme Court altered his perspective and aggrandized his self-image, he became exactly what his critics said he was all along.

I believe that Scalia's tipping point was his dissent in Lawrence v. Texas, a patronizing yet still legally grounded slippery slope argument about the validity of laws based on a state interest in "morality". Since then it has been all downhill, with each successive opinion reading more like a letter to the editor written in the voice of Archie Bunker. He invokes bizarrely torturous legal "logic" – as we shall see in a moment – to give the appearance of intellectual weight to what is essentially his opinion. Not his legal opinion, mind you, but his personal convictions about the way society, government, and the political process should be. See some of my previous complaints about the fallacy of "original intent" as a mode of constitutional interpretation in Scalia's hands here and here.

On Monday, Scalia finally jumped the shark. He has become such a naked reactionary and partisan that even mainstream commentators are becoming more reluctant to laud his brilliance and fair-minded approach to jurisprudence. In Arizona v. US – the now-infamous SB1070 immigration law case – Scalia offers an "interpretation" of state and national powers so ridiculous that a college freshman would be forced to re-take Intro to American Government for submitting it as a final exam answer.

Some quick background: the Constitution gives the national government, and specifically Congress, complete power over issues of immigration and citizenship. If Congress wants to pass a law tomorrow sealing our borders completely or throwing them open to grant citizenship to anyone who can get here by Friday, it can do so. As with all laws passed in Congress, enforcement is delegated to the Executive branch. Congress can limit the president's discretion with respect to enforcement, or it may choose not to. And of course the Supremacy Clause guarantees that all conflicts between state and national laws are decided in favor of the latter.

Scalia's argument, however, recognizes none of these Constitution 101 For Dummies facts. He argues, if I understand his gibberish correctly, as follows: Barack Obama is not doing a good enough job of enforcing immigration laws. In fact, he is willfully degrading their enforcement by deferring removal of foreign non-residents detained in the justice system in this country. Therefore the State of Arizona can step in and enforce immigration laws and policies how it chooses, as befits a sovereign state. To deny them that power would be to deny their sovereignty, and there exists some amorphous "threshold" of Executive enforcement at which states can choose to enforce the laws of Congress as they wish. States, being sovereign, can choose to enact more restrictive immigration laws than Congress as long as their laws do not conflict with Federal laws. He uses a plethora of two century old examples to argue that states have precedent to set their own immigration policy and that the power is not exclusively vested in Congress. Forgive me for paraphrasing. If I am being unfair to his argument, please let me know.

The Immigration and Nationality Act gives the president the power to enforce immigration laws – including the canceling or deferral of deportation, which so vexes Scalia – as he chooses based on the resources available to him. No law is enforced with 100% efficiency. More importantly, Congress could have prevented the president from doing these things by limiting his discretion in the legislation…but it didn't. Congress left it essentially open ended. More importantly, however, the three provisions of the Arizona law that were struck down all duplicated an existing Federal law. As the decision reads, Federal law:

specifies categories ofaliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227.

While it is clear that something that is against Federal law may also be against a concurrent state law, that logic applies if and only if the relevant power is shared by states and Congress. That Congress has complete and supreme power over issues of immigration and citizenship is made clear in several clauses of the Constitution and 200 years of jurisprudence. The majority opinion does an excellent job of summarizing this. There does not appear to be a vast number of legal scholars aside from Scalia, his buddy Clarence, and Jan Brewer who fail to recognize that, "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."

To Scalia, however, this is all very simple – the President isn't doing a good enough job, according to "the citizens of Arizona." Therefore, screw the Supremacy Clause and the fact that immigration is, outside of the contorted logic in the dissent, an exclusively Federal power not shared with the states. Anton Likes It, therefore somehow it is constitutional. Thousands of words are offered to create the appearance of a complex, reasoned argument (albeit one filled with petty, political potshots at the President) but nowhere does it address the basic reality of the immigration issue except by fiat – sure, the Constitution, precedent, and the laws of Congress make clear that it is an exclusively national issue, but it, like, totally isn't. Because this one time in 1814…..