RETROACTIVELY RIGHT

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…..

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37 Responses to “RETROACTIVELY RIGHT”

  1. Middle Seaman Says:

    Original intent is an oxymoron. First and foremost, once a law is enacted it stands on its own. The intentions of its supporters is the collection of the individuals intentions of the laws supporters. Thus, every comma, period and letter in the constitution has many different intents. The talk of an original intent is a talk about a non existing concept.

    What original intent really was is a vehicle criminal such as Scalia can use to push their political and personal agenda. That never changed from the day he was foisted on the court to this very day.

    Of course, recently the 2000 presidential election was taken away from the voters and given to the fascist wing of the court. Citizen united decision achieved a unique climax, it is based on the Italian constitution in the Mussolini era. That is, Mussolini's intent.

    Intellects, smarts and legal scholarship have nothing to do with the court. Mussolini would have been proud of our court.

  2. Xynzee Says:

    What we have here is the failure of not having a strong central govt, which prevented a uniform standard of education.

    By allowing for parallel histories to exist — War Between the States or War of Northern Agression instead of The Civil War — what appeared to have been settled 150 yrs ago on the battle field for most of us looks to be rearing its ugly head again, the question of the limits of States' Rights.

    Perhaps the Babylonians and Assyrians were on to something when they'd relocate people from around their empires thus obliterating nationalist narratives.

  3. c u n d gulag Says:

    Scalia hasn't just "jumped the shark."

    He's feckin' it up the ass and giving it a reach-around!

    And then there's his buddy, Sammy "No Chin" Alito.
    Read his opinion on the decision that we can't keep 14 year-old kids in jail forever and ever and ever.
    He's practically sh*tting his pants, thinking about the idea that someday, a 14 year-old kid might get out of prison and do something terrible. Which, since we don't do much anymore to educate and rehabilitate inmates, may very well have a hint of truth in it – easily remedied, by having classes, and teaching job and life skills in prison, but instead, since Reagan got in, all we want to do is lock people away for as long as possible, as far away from family and friends as possible, to punish them. We are truly a nation led by feckin' morons.
    I know if I was 14 when I went to prison, read this feckin' idjit's opinion, and finally got out, this asshole's would be the house I'd go to, just to prove him right.

    We have 4 Fascist feckin' idjit's on the Supreme Court, and a 5th bozo who sides with them most of the time.

    If anyone has problems with Obama, and I have a few, or more than a few, just think of a Romney-filled Supreme Court, with more Scalia's, Alito's, Thomas's, and Roberts. Kennedy will look like a feckin' bleeding heart Liberal in that new bunch.

  4. Sarah Says:

    He argues, if I understand his gibberish correctly, as follows: Barack Obama is not doing a good enough job of enforcing immigration laws.

    Maybe somebody should point out to Scalia that illegal immigration was a problem during the Republican administrations (including the administration of the asshole who appointed him) too.

    I think that this image pretty much sums up my personal feelings about illegal immigration.

  5. Freeportguy Says:

    Scalia's argument sounded more political than legal. If that's what he wants, he should run for office rather than hide behind his Justice position.

  6. Coffeeman Says:

    We are living Through The Looking Glass, are we not? States Rights don't include deciding election results, but they may control immigration.

    We have reached the stage in the US where Putin must be envious of leading a country with no public response to blatant fascism.

  7. Number Three Says:

    Weren't there some cases in the 1990s where Congress attempted to use state officials to enforce federal laws (admittedly, against their wills), and Scalia said that that was a violation of federalism? Printz and conducting firearm-sales background checks?

    So Congress cannot "commandeer" state officials, but state officials can, essentially, countermand the federal government.

    John C. Calhoun, anyone?

  8. Arslan Says:

    There has been more of a "response" to this kind of crap in the US than Russia, actually.

  9. anotherbozo Says:

    I have yet to see evidence for Scalia's reputedly towering intellect. In a show hosted on PBS by Charles Ogletree back in the Pleistocene, called "That Delicate Balance II," Scalia was one of the panelists. His interpretation of a test case was so wanting that Ogletree (Harvard Law professor) had to school him. Scalia, then maybe not so obnoxious, took the correction silently.

    In a better world, Ogletree would have become a justice, not Scalia.

    BTW, that program series would be a great teaching tool. Entertaining, too, though nobody gets decapitated. Amazon has the whole stack for sale, but only on VHS. Any school still have a VCR?

    http://www.amazon.com/s/ref=nb_sb_ss_i_0_13?url=search-alias%3Dmovies-tv&field-keywords=that+delicate+balance&sprefix=that+Delicate%2Cmovies-tv%2C131

    The solitary reviewer calls the series "the best thing ever put on television." On reflection I can't think of anything better. The panels were generally incandescent with political, legal and intellectual heavyweights.

    Ogletree's bio on Wikepedia lists only "That Delicate Balance II" as the one he hosted, and I notice there's only one tape (used) available, with the seller wanting $49.00 for it. Maybe Scalia bought up all the others.

  10. Both Sides Do It Says:

    His concurrence in Raich, post-Lawrence, was good.

    But really that just makes the other stuff worse, doesn't it.

  11. Amused Says:

    I think Scalia jumped the shark when he asked the US Attorney whether he really expects him to read the Affordable Care Act before ruling on it.

    I've been practicing for over ten years, in cases that involve infinitely smaller stakes, and I have never, EVER heard a judge ask, "You expect me to read all THIS??"

  12. bb in GA Says:

    @xynzee

    I have noted before, your Northern great-great-grandfathers failed you.

    They should have implemented the Assyrian solution of resettlement of the South (the 'North' in that historical situation) and applied King David's vow to kill "everyone that pisseth against the wall" in his anger against Nabal.

    Militarily the firebrands were all killed because we got no insurgency after Appomattox. (Although Marse Robert, a few years later, repented of not dying with his saber in his right hand when he saw the 'Reconstruction' crap)

    Your greats should have finished the job and maybe y'all wouldn't have to put up with me today…

    We still haven't settled it…right now it looks like Hamilton is winning.

    //bb

  13. sbj Says:

    Ed,

    So does this ruling mean that if a state thinks that federal system isn't working effectively they are free to supersede federal authority? For example, say Vermont doesn't think the federal government isn't approving new drugs fast enough and therefore not doing their job effectively. Does this ruling mean that, in this instance, the state government could approve the sale of drugs which the FDA has not approved?

  14. Elle Says:

    I've been practicing for over ten years, in cases that involve infinitely smaller stakes, and I have never, EVER heard a judge ask, "You expect me to read all THIS??"

    It seems like a poor career choice for someone who can't process thousands of pages of information without breaking a sweat.

  15. Amused Says:

    Elle:

    It seems like a poor career choice for someone who can't process thousands of pages of information without breaking a sweat.

    It's especially embarrassing given the fact how much support federal judges, especially Supreme Court judges, have. He's simply being a rude, obnoxious ass, when every lawyer in the room knows he is not going to personally read the whole thing. There are the "court attorneys", probably somewhere in the bowels of the "sub-subbasement", chained to their desks like ancient brireme rowers — they are the ones who are going to take the first crack at it. And who cares whether or not they find it boring? Plowing through thousands upon thousands of pages, for as long as it takes, is in the Court Attorney's job description.

    Then there is Scalia's clerking staff, who are all going to read it, re-research the law, and draft a bench brief for their boss. The bench brief will contain the highlights, and the clerk will then give him a blow-by-blow. Ultimately, a good, conscientious judge will end up personally reviewing certain portions of the statute text — which will probably still be a lot, but come on.

    His comment about reading the ACA is worse upon reflection than it sounds at first. What he was really saying was, "Okay, persuade me I should care what this law actually says, before I put my personal, partisan convictions in the form of a legal opinion."

  16. JohnR Says:

    I think you're being overly generous to Mr. Scalia. He's certainly been entertaining, and in the past his decisions may well have been legalistic enough to satisfy his observors, but (and it's entirely possible that I have missed some) as far as I have been able to tell over his tenure on the court, his reasoned, thoughtful interpretation of The Law somehow never failed to lead him to a decision that could have been predicted from a simple knowledge of his political views. He's as Procrustean a Jurist as his disciples Mr Thomas and Mr. Alito – he trims the Constitution to fit his beliefs. That he has finally stopped bothering with even the pretense of judicial impartiality is not a surprise; the real surprise would be if he found that his interpretation of the law led him to a "Liberal" conclusion.

  17. Amused Says:

    JohnR:

    the real surprise would be if he found that his interpretation of the law led him to a "Liberal" conclusion.

    Well, for what it's worth, he did author the majority opinion in Kyllo v. United States, holding that surveillance with an infrared radar requires a warrant. But hey, even a broken clock is right twice a day.

  18. mel in oregon Says:

    antonin scalia was an only child, a very conservative catholic, & a brilliant student graduating summa cum laude & valedictorian at georgetown univ. however the man is 76 years old, & it appears his intellect has declined significantly. he has a number of conflicts in his reasoning & legal dogma. the most important of which is his hardcore belief in original intent of the constitution, which simply means to interpret the constitution as it was meant to be at the time it was written. using this logic means that brown vs board of education never would have happened. clearly the slaveholding founding fathers couldn't possibly have imagined america in 1954. and scalia's logic conflicts with common sense & original intent in citizens united vs federal election committee. corporations weren't "people" when the constitution was ratified. and scalia has participated in decisions where he should have recused himself on a number of cases one of which cheney vs u.s dist court for dist of columbia where cheney & scalia went hunting together on air force 2. scalia makes a very good argument for time limits on supreme court justices, i'd like to see 8 years. then as their mental powers decline, & as we have seen many times, conflicts of interest are readily apparent, as well as rigid thinking that is more influenced by religious, nonsensical dogma, they need to replaced by fresher minds.

  19. Elle Says:

    Amused:

    His comment about reading the ACA is worse upon reflection than it sounds at first. What he was really saying was, "Okay, persuade me I should care what this law actually says, before I put my personal, partisan convictions in the form of a legal opinion."

    Yes, I assumed he wasn't going to read the entire statute himself, but his comment is irredeemably obnoxious.

    G+T compelled me to read a few books about the US Supreme Court, and it actually sounds as if the level of ploughing through paper is less than a whole bunch of other jobs. I could imagine wanting to do that.

  20. PWL Says:

    Should we call Fat Tony the Roger Taney of the 21st Century?

  21. buckyblue Says:

    There is no one more self-centered person in this world than an Italian oldest son, can't imagine what an only male Italian would be like. Wait, I guess I can. The original intent argument is just bullshit. By that consideration; social security, medicare, medicaid, public transportation, public education, pretty much anything the federal gov'tor even state gov't does is not part of original intent of what the 'founding fathers ' (cue deep, sonorous voice) had intended.

  22. Sarah Says:

    By that consideration; social security, medicare, medicaid, public transportation, public education, pretty much anything the federal gov'tor even state gov't does is not part of original intent of what the 'founding fathers ' (cue deep, sonorous voice) had intended.

    Yeah. And conservatards/Libertardians want to cut all of that by exactly that reasoning.

    I've seen serious proposals to privatize all existing roadways from Ayn Rand worshipers, complete with analyses of how to cope with the logistics.

  23. Andrew Laurence Says:

    I wonder WHY Scalia is an only child. Weren't his parents also Catholic? Perhaps they believed in birth control.

  24. Dave Says:

    I will say that Scalia can sometimes be an unexpected ally to the liberals in civil liberties cases, such as Kyllo, noted above, and also Hamdi, in which he joined Stevens alone in dissent in what I think was the right view of habeas corpus rights applied to U.S. citizens–http://www.law.cornell.edu/supct/html/03-6696.ZD.html

    In Crawford v. Washington, Scalia breathed new potency into the Sixth Amendment right to confront witnesses against a defendant in a criminal trial—he held that position in dissent for years and waited until 2004 to get a majority. http://en.wikipedia.org/wiki/Crawford_v._Washington

    In all of those cases, it appears to me that Scalia was uncomfortable siding against the government but felt that his principles compelled him to a contrary result, and his opinions in all three are very well reasoned and supported (and interesting). So I do not think he is a complete loose cannon or political hack, but I do think he, like many (all?) other judges, is political and bends legal authorities where he thinks he can be credible to reach a preferred result in some cases.

  25. Rosalux Says:

    As an attorney, I concur with Ed's assessment. This decision was wacked, and conflicts with literally hundreds of years of precedent, settled law, demarcating the federal government's supremacy in the area of immigration. It's really that settled.

    I do think Scalia has written some brilliant decisions (not recently), so for my money I think he's getting senile. I think his mental powers are in decline. Hurray for life terms!

  26. bb in GA Says:

    Mr Laurence:

    Mamma and Papa Scalia are not responsible for any of this other than the obvious :-)

    Maybe Mama developed endometriosis or some other medical problem or maybe Papa got his nuts shot off in WW2 so you could write your response in English instead of German or Japanese.

    NYDB

    //bb

  27. The Pale Scot Says:

    someone apparently digitized the VHS tapes, they are available in T-space.

  28. Amused Says:

    bb in GA:

    Maybe Mama developed endometriosis or some other medical problem or maybe Papa got his nuts shot off in WW2 so you could write your response in English instead of German or Japanese.

    Papa was born in 1903, making him 38 years-old at the time the US entered World War II and thus eligible for service for only a few months. In any event, my own quick research (including skimming a a biography very favorable to Nino) suggests that Papa did not fight in World War II. Also, please don't make it sound as if fighting in World War II was something American conservatives did and we should all be thankful for. If you are not leaving your comments in German or Japanese today, you may just as well thank my grandparents, three of whom were Communists and the fourth a completely apolitical atheist.

  29. Isaac Says:

    Thanks Pale Scot. :-)

  30. HoosierPoli Says:

    When I read the word "sovereign" I nearly shit my pants. Yes, Justice Scalia, of COURSE it disregards the sovereignty of the states…because they AREN'T SOVEREIGN. They EXPLICITLY do NOT have the right to control who comes across state lines, nor can they print their own currency, raise an army, or decide slaveholding is once again legal. You may remember we had a war about this.

  31. HoosierPoli Says:

    And, BTW, bb:

    Meine Antworten sind auf Deutch weil Deutsch ein sehr schoener und logischer Sprache ist. Wenn Sie ein bisschen mehr gestudiert hat, koennte Sie mich verstehen.

  32. Origuy Says:

    anotherbozo: Out of idle curiosity, I searched the inter-library links at San Jose Public Library's website. Several libraries on the West Coast have some or all of the "That Delicate Balance" series. Amazon is not the only place to get obscure media.

  33. MaybeDontTeach Says:

    See Roberts should have written about how students today are just soo spoiled, then you would accept his arguments as a given rather than picking apart the substance and history.

  34. bb in GA Says:

    As usual, y'all tend to the pedantic…

    The OP was musing, speculating, brain farting on why Justice Scalia was an only child and my inference is that the OP thought he was such a hideous little bastard that Mama and papa couldn't bear the thought etc…

    I was listing some possibilities that answered his/her speculations fancifully…I wasn't writing a friggin' term paper…

    I was making it in a right winger kind of way (duh)

    Mierda del toro!

    //bb

  35. Shane Tolleson Says:

    @ MaybeDontTeach. Many students today are just too spoiled and too lazy to research. Granted that there are still students who do, they are fewer and they usually don’t have the popularity vote. Usually, they are also ignored ad their opiios are basically shove dout of the windows. Not exactly a pretty picture.