Whichever way one comes down regarding President Trump’s pardon of Sheriff Joe Arpaio, I think it’s important to recognize the context in which Arpaio took the over-zealous law enforcement actions that led to his conviction. That context was described by Justice Scalia in his opinion (concurring in part and dissenting in part) in Arizona v. U.S., a decision that struck down in large measure an Arizona immigration enforcement law called S.B. 1070.
Justice Scalia wrote:
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. . . .
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. 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.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.
Scalia concluded with a question:
Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?
Of course not.
Daniel Horowitz, whose recent article invokes these words by Scalia, writes:
There is something fundamentally wrong when people delegitimize the pardon of one sheriff — whether you agree or disagree with Trump’s decision — but unquestionably support the de facto judicial pardons of millions of illegal aliens, including some of the most violent ones, even though courts manifestly lack such power.
Moreover, Obama illegally “pardoned” (plus gave affirmative benefits to) 900,000 illegal aliens, including the likes of Salvador Diaz-Garcia, who allegedly raped a 19-year old American and broke almost every bone in her face.
Of course, some strong critics of the Arpaio pardon did not support the de facto pardons Horowitz describes. For me, the story here is less about hypocrisy than about realizing what can easily happen when the federal government abrogates its duty to enforce laws that are vital to the safety and well-being of certain communities.