Yesterday’s Supreme Court decision in the case of Arizona v. United States, which struck down three key provisions in Arizona’s immigration enforcement statute known as S.B. 1070 for conflicting with federal immigration law and policy, provoked a vigorous dissent from über-conservative Justice Antonin Scalia. Arizona passed its law because its legislature wanted a more aggressive immigration enforcement policy than either the Bush or Obama administrations were following. In crafting his opinion to support Arizona’s position, however, Scalia had to contradict statements he has made over the years regarding the power of the Executive Branch, including in immigration cases remarkably like Arizona.

 

Scalia’s dissent, filed on behalf of himself and Justices Clarence Thomas and Samuel Alito, argues that Arizona’s “sovereignty” gives it the inherent power to take steps to exclude people from the state who have no legal right to be there, e.g., undocumented aliens. While that may be true, the Supremacy Clause of the Constitution makes clear that federal law pre-empts state law when the two conflict.

 

The Obama administration argued, and five justices agreed, that federal immigration law provides a comprehensive framework for its own enforcement, which is under the control of the Executive Branch of the federal government. Further, Executive Branch authority includes the power to set enforcement policies, such as whom to prosecute and when, which is often called prosecutorial discretion. It was that discretion against which Arizona’s S.B. 1070 was directed.

 

The trouble for Scalia is that in past opinions he has given great deference to that discretion. In 1988, for example, Scalia wrote that “the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law.” (Emphasis added.) In that case, Morrison v. Olson, Scalia dissented from the majority’s ruling upholding the federal law (since expired) providing for the appointment of special prosecutors, against the will of the president, to investigate possible wrongdoing in the Executive Branch. Scalia’s point was that deciding whether or not to prosecute is a function belonging exclusively to the Executive Branch.

 

Scalia later doubled down on his deference to prosecutorial discretion in the case of Reno v. American-Arab Anti-Discrimination Committee, an immigration case decided in 1999 for which Scalia wrote the majority opinion. In that case, six Palestinians who had overstayed their visas argued that they were being selectively prosecuted and deported because of their political beliefs, in violation of the First Amendment. Scalia rejected their claim, partly on technical procedural grounds, but also out of deference to prosecutorial discretion.

 

Quoting an earlier case, Scalia endorsed the view that, “This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” (Emphasis added.) Scalia then added: “These concerns are greatly magnified in the deportation context.”

 

Despite his opinion in Reno, Scalia tossed all that deference to federal immigration policy out the window in Arizona, even criticizing President Obama’s recent decision to suspend deportations of some young undocumented aliens. By a bit of judicial sleight of hand, he tried to limit “federal enforcement priorities” the courts are obliged to respect to “priorities based on the need to allocate ‘scarce enforcement resources.’” Scalia cited the Government’s Brief, which stated that this need was only one of several reasons the courts have deferred to federal policy; Scalia effectively ignored the other reasons in order to avoid the legal conclusion required by his earlier opinions.

 

Based on the differences between Reno and Arizona, Justice Scalia believes in deferring to federal immigration law and policy when the decision is to deport aliens, but not when the decision is to refrain from deporting them. That is called “result-oriented judging,” i.e., the judge decides the case based on his or her personal preferences or beliefs, rather than the law. Oddly enough, that is something Justice Scalia and other conservative legal commentators frequently accuse liberal judges of doing.

-Matt Bewig