Though overshadowed by the shocking Supreme Court decision on health care, the court’s Arizona immigration decision, issued three days earlier, remains far more significant than appreciated. It was generally viewed as mixed or ambiguous because the Justice Department prevailed in striking down three of the law’s provisions. However, regarding the law’s central and most controversial element — requiring officers to inquire into the immigration status of anyone picked up for some other violation — the ruling was definitive, indeed unanimous.
No liberal-conservative divide here. The smackdown was 8-0. (Justice Elena Kagan recused herself.) Not a single justice found merit in the administration’s claim that this “show me your papers” provision constituted an impermissible preemption of federal authority.
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On what grounds unconstitutional? Presumably because state officials would be asking about the immigration status of all, rather than adhering to the federal enforcement priorities regarding which illegal aliens would not be subject to deportation.
For example, under the Obama administration’s newly promulgated regulations, there’ll be no more deportation of young people brought here illegally as children (and meeting certain chronological criteria). Presumably, therefore, the Arizona law is invalid because an officer might be looking into the status of a young person the feds now classify as here legally.
Beyond being logically ridiculous — if a state law is unconstitutional because it’s out of sync with the federal government’s current priorities, does it become constitutional again when federal policy changes? — this argument is “an astounding assertion of federal executive power,” writes Justice Samuel Alito in a concurrence. The Obama Justice Department is suggesting that “a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy.”
And there’s the rub: the Obama administration’s inability to distinguish policy from law. This becomes particularly perverse regarding immigration when, as Justice Antonin Scalia points out, what the administration delicately calls its priorities is quite simply a determination not to enforce the law as passed.
This is what makes so egregious the Obama claim that Arizona is impermissibly undermining federal law. “To say, as the court does,” writes Scalia regarding those parts of the law struck down by the majority, “that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.”
Consider this breathtaking cascade: An administration violates its constitutional duty to execute the law by deliberately refusing to enforce it. It then characterizes its non-enforcement as simply establishing priorities. It then tries to strike down a state law on immigration on the grounds that it contradicts federal law — by actually trying to enforce it!