A Brief View of Scalia’s Dissent on SB 1070 in Arizona v. U.S.
Today, listening to the recent National Public Radio discussion of Justice Scalia’s scathing dissent in Arizona v. U.S., one had to become curious at what stance Scalia took in the case. SCOTUSBlog writer Tom Goldstein described the dissent as apoplectic—overcome with anger. Justice Scalia’s language reminds us that the U.S. continues to broil in the Arizona heat of the immigration issue.
Run a Google search of the Supreme Court’s decision on Arizona’s immigration law, and you get an idea of the division that stretches up to the headlines: “Supreme Court mostly rejects Arizona immigration law”, “Supreme Court strikes down key parts of Arizona immigration law”, “Supreme Court upholds key part of Arizona immigration law”, “Supreme Court Splits on Arizona Immigration Law.” Taking into full consideration that media sells controversy, not agreement, and that the media exponentially drives the public into a division that exponentially drives the media, the list of contradictory headlines should still remind readers that we cannot seem to agree on this issue.
The immigration controversy goes to the core of our nation—a nation that is run by hardly a single native American. As an American of allegedly German-Austrian-Irish-Italian descent, it is hard for me to not sympathize with the plight of anybody on the outside looking in, or on the inside looking over his or her shoulder. But we can only gain by reviewing Scalia’s dissent to understand his perspective, as it is likely shared by many in the U.S.
Arizona v. United States (2011):
Quoting the Court, an Arizona statute known as S.B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The law makes it a misdemeanor to fail to comply with alien-registration requirements and to seek or engage in work without authorization. The law also authorizes police officers to arrest a person without a warrant when the officer has probable cause to believe that that person has committed any public offense that makes the person removable from the U.S. Even where making a stop, officers must make efforts to verify a person’s immigration status. Although the Court struck down most of these provisions, it held that the mandatory or permissive nature of the status checks is essentially okay.
Justice Scalia begins his opinion by stating that the U.S. is an indivisible “Union of sovereign States,” and that the ruling striking down Arizona’s immigration law deprives Arizona of its sovereign right to exclude from its territory those that “have no right to be there.”
Scalia points out that fact which we often forget after nearly 250 years as a united country: the USA was once just a series of independent colonies or nations. These colonies were settled by people of extremely diverse backgrounds, religions, nationalities, and races. It may be easier to consider the U.S. similar to a union of nations, like the European Union. Just as Germany would not let England determine its rules on border crossing, so too, according to Scalia, Arizona should not let Washington D.C. determine its immigration policy. In fact, Scalia refers to these international scheme: “[i]t is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country.” Of course, Scalia also quotes James Madison in saying that “the Constitution’s provisions were designed to enable the States to prevent ‘the intrusion of obnoxious aliens through other States.’”
Nevertheless, Scalia drives home his “most important point … that Arizona is entitled to have its own immigration policy.” Scalia does not find it compelling that his line of thought raises concerns about unnecessary harassment of some aliens, or that officials might determine that some should not be removed; no, “[i]t holds no fear for [Scalia].” What Scalia does fear is that “’federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.”
With statements such as these, it’s no wonder that Tom Goldstein regarded Scalia’s opinion as overcome with anger. We wonder whether Justice Kennedy’s critics considered the majority as complaisant.
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