The Supreme Court’s immigration decision — an affront to federalism and to common sense

The Supreme Court’s decision strking down, on preemption grounds, major portions of an Arizona law designed to help that State cope with the massive and unlawful influx of aliens is an affront to federalism and to common sense. Justice Scalia has it right in his dissent:

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.

In attacking the Arizona law, the Obama administration argued that the federal government needs to control the use of scarce enforcement resources unencumbered by tasks forced upon it as the result of state laws. Scalia made short work of this bogus argument:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States

“• came to the United States under the age of sixteen;

“• has continuously resided in the United States for at least five years . . . ,

“• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . ,

“• has not been convicted of a [serious crime]; and

“• is not above the age of thirty,”

then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The president said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But 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.

It does, indeed.


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