A shocking and disastrous decision

Vincent Chiarello writes:

Caro Lorenzo,

I cannot adequately describe the shock and surprise I felt today upon reading the decision of the U.S. Supreme Court in the Arizona illegal-immigrants case. To stoop to the vernacular, I thought it would be a slam dunk for the border-control side and that the people of Arizona would be allowed to deal effectively with the invasion they face from south of the border. I was wrong.

But if shock and surprise describe my reaction to the decision, I have no words to explain the willingness of the Chief Justice John Roberts to deny the State of Arizona the right to defend itself. At no time during the oral arguments (April 25) did I ever doubt that the Chief Justice, by virtue of his questioning and his facial expressions (and I was sitting close enough to monitor them), would ever grant the government’s case; truth be told, none of the eight Justices (Kagan having recused herself) appeared even remotely willing to grant the Solicitor-General’s arguments. I instinctively knew that the “wise Latina” was putting on an act, and that both Justices Breyer and Ginsburg would vote the way they did. But the Chief Justice? As for Justice Kennedy, the author of the decision, he will, no doubt, continue to be invited to the salons of Georgetown, where his “prudence” and “statesmanship” will be touted, but not his adherence to constitutional principle, I assure you.

The Court’s decision is more serious than as been described, for the one section that was upheld—police ability to ask for proof of citizenship—is subject to further Court scrutiny, which will certainly be forthcoming by disparate and unending legal challenges claiming “profiling” by the ACLU and La Raza.

The dissents by Justices Scalia, Thomas, and Alito were longer than the Court’s majority opinion. Scalia’s dissent, which is the most penetrating and readable, is a blistering attack on the Court’s willingness to deny a state the ability to defend itself. He openly states that, on the basis of this decision, “state sovereignty” can no longer claim to exist. He himself saw nothing in the four sections of the Arizona law that was unconstitutional.

For the past few weeks, liberal journalists in our dysfunctional national capital have focused their attention, and their warnings, on the Chief Justice, insisting that Roberts rise above the fray and become a peacemaker to the warring factions in the Court. If the hitherto reliably conservative Chief Justice broke with his conservative justices on this issue, and was persuaded to change sides by Justice Kennedy’s flagrant violation of the division of power, what, pray tell, will Thursday’s decision on Obamacare bring?

Although I should have known better, I increasingly have come to recognize the wisdom of the warning: Nolite confidere in principibus—Trust not in princes. Or, for that matter, in certain Justices of the U.S. Supreme Court.

Vincenzo il Triste

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Clark Coleman writes:

The Arizona anti-illegal immigration law has fourteen sections, each separable from the others. Ten of these sections have never been challenged successfully and did not make it to the Supreme Court for review. So, the news stories (and your commentators) should say that the Supreme Court struck down three of the four sections that made it to their review.

A year ago, the Supreme Court upheld the right of states to require all employers in the state to use E-Verify to confirm the lawful status of employees. That was a separate Arizona law, not even one of the fourteen sections of the later law being reviewed today. That green light, plus the eleven sections of the Arizona law still standing, give states all they need on this subject. In fact, E-Verify alone will do the trick. States also are allowed to avoid paying any state benefits to illegal aliens (e.g. granting in-state tuition, giving state or local welfare program benefits, etc.) The key steps beyond these state laws clearly fell into the hands of Congress even before today’s ruling: ending the visa lottery, ending birthright citizenship, reducing chain migration to nuclear families, and so on. States were never going to be allowed to control such matters, and E-Verify is plenty for the states to do.

This info is available at NumbersUSA.

Ed H. writes:

In reply to Vincent Chiarello:

The one crucial element of AB1070 was upheld. States may protect themselves by asking individuals their resident status. That is the only tool we need. The other provisions are unimportant. A individual may not be required to carry papers, but if he can be asked to prove his status he had better be able to get them. Legal residents are already required to carry their resident cards at all times. Thus if a detained individual does not have a card on him, it’s all the more reason to hold him till he produces one. The other feature of 1070 that was denied was that an illegal may hold a job. But sooner or later he will be stopped for some infraction and be asked for proof of status. A few arrests and deportations using this tool will work wonders in any state using it, as it already has in Arizona.

Vincent Chiarello writes:

Allow me to respond to both comments that followed my assertion that the Supreme Court decision was far more serious to patriotic immigration reform than they believed.

First, within the body of the Court’s majority opinion is this boilerplate:

The history of the U.S. is in part made of those stories, talents and lasting contributions of those who crossed oceans and deserts to come here.

I submit that by including all of that wording and (deliberately?) leaving out the fact that we are talking about illegal aliens who have committed a federal crime in getting here is indicative of the mindset of the Justices who formed the majority opinion.

While it is true that there were points of the Arizona law that have not been challenged, and that Section 2 was kept, it is noteworthy that the three points that were overturned included: penalty for failure to carry an alien-registration card, which is a violation of federal law; the state’s inability to control unauthorized seeking of employment by illegal aliens, and the state’s law enforcement ability to arrest someone who is thought, after ascertaining the facts, to be possibly guilty of a deportable offense. All of that was overturned. Yes, there is E(lectronic)-Verify, but if there is no mechanism for carrying out that law then it, too, is worth the paper it’s printed on.

Further, regarding the upholding of Section 2B, I believe that the assertion that this was a major victory eclipsing in importance the rejection of the other three provisions must be held in abeyance. A fair reading of the Court’s opinion may prove that this “victory” may not stand the test of time. From the opinion of the Court: It was improper, however, to enjoin 2B before the state court had an opportunity to construe it and without showing that enforcement of the provisions in fact conflict with federal immigration law and its objectives.

I further submit that that there is no valid justification to assume that 2B will, without question, survive further legal challenges, and neither do the five Justices who wrote that opinion.

I cannot resist adding a coda to my recollection of the oral arguments in the Arizona case. Although Justice Scalia led in dissecting the flaws of the government’s case, Chief Justice Roberts was not far behind. In one memorable moment, the Chief Justice interrupted the Solicitor General, and said plaintively: I don’t think the government cares how many illegal aliens there are in the country.” How ironic, then, that by his favoring the majority decision today, one can rightfully assume that neither does the Chief Justice of the U.S. Supreme Court.

Posted by Lawrence Auster at June 25, 2012 04:39 PM | Send

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