Commentary Magazine


Contentions

A Muddle-Headed Immigration Decision

In its decision Arizona v. the United States, the Supreme Court today held that three provisions of an Arizona statute known as S. B. 1070, which was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the state, was preempted by federal law.

A fourth provision which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify a person’s immigration status with the federal government, was upheld—though the Justices said the provision could be subject to additional legal challenge. (“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Justice Kennedy wrote in the majority opinion.)

Overall the decision was a setback, then, though perhaps not as injurious as it could have been, since the fourth provision was upheld (albeit in a weak manner that seems to invite further challenges).

The core of the problem with the Court’s decision is that Arizona was entitled to pass the law that it did, assuming that its provisions were not at odds with federal law. Clearly they were not, which is why the decision is fundamentally flawed and poorly reasoned.

As Justice Scalia writes in his dissent, “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.”

One cannot help but assume that for some on the left, that would be perfectly fine.

In any event, Justice Scalia went on to make this observation:

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. [highlights in original]

Indeed it does. We can only hope the majority’s muddle-headed thinking—in which a state that enforces laws the president refuses to is deemed to be acting in a manner that is not only inappropriate but unconstitutional—was confined to this case and doesn’t extend to the Supreme Court’s ruling later this week on the Affordable Care Act.

Arizona v. the United States was a bad decision by the highest court in the land.



Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »





Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.