You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

More On Scalia’s Editorializing

We’re still two days away from the Supreme Court’s decision on the Affordable Care Act, but luckily there’s still a lot to chew on from yesterday’s important ruling in Arizona v. United States. I’ve covered the main points, but there are a few issues that merit further discussion—in particular, Justice Scalia’s unhinged dissent, which took a strange digression into immigration policy issues that were not before the Court. Jeffrey Toobin, writing about Scalia’s opinion in The New Yorker, shares my view that the digression was irrelevant and inappropriate:

"After twenty-five years on the Court, Scalia has earned a reputation for engaging in splenetic hyperbole—but he outdid himself this time. Scalia thought the Court should have approved S.B. 1070 in its entirety, but his opinion, which he read from the bench in his usual clear basso, ranged over several contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama recently used an executive order to accomplish some of the goals of the DREAM Act, and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.) [emphasis mine]"

It’s good to see, via Michael Tomasky, that even some conservatives found Scalia’s behavior inappropriate. In his dissent, Scalia lamely attempted to establish the relevance of his rant by trying to connect it to a legal question in the Arizona case: Whether Arizona was preempting federal priorities, which include (as the government’s brief put it) “the Executive Branch’s ability to exercise discretion and set priorities […] because of the need to allocate scarce enforcement resources wisely.” Scalia, to put it lightly, did not buy this line of reasoning. “It has become clear,” he grumbled, “that federal enforcement priorities—in the sense of priorities based on the need to allocate ‘scarce enforcement resources’—is not the problem here.”

Why? Because, he argues, that same resource-strapped federal government is going to run up “considerable administrative cost” implementing the DREAM directive—a cost that will “necessarily be deducted from immigration enforcement.” Don’t tell me you’re short on money, Scalia is saying, when you’re blowing millions on this DREAM directive!

To put it plainly, this is none of the Justice’s concern. Antonin Scalia does not get to decide how immigration enforcement resources are spent. But to Scalia, this is not a matter of law or policy; it’s a question of basic survival. He argues that something truly scary has come to pass: “A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” Well, then. He goes on: “So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”

This is not so much “stark” as it is simplistic, or maybe just dishonest. Scalia’s argument, you’ll notice, has subtly shifted from the DREAM directive to the border. The implication—that Arizona and its borders are under threat from DREAMers—is, of course, nonsense. The directive (which Scalia is clearly referring to in his reference to “a Federal Government that does not want to enforce the immigration laws as written”) does not concern border security. It is designed to apply to people who have been here since childhood, not anyone crossing the border today.

In any case, the point is completely irrelevant to the question before the Court: Does Arizona’s law unconstitutionally interfere, in a variety of ways, with federal efforts? The answer is yes—regardless of whatever unrelated issues Scalia wants to use his position to complain about.