Justice Scalia’s dissent opinion a jaw-dropper

I’m not often shocked by the words of a U.S. Supreme Court justice, but Antonin Scalia’s dissenting opinion in Arizona v. United States, announced last Monday, left me gasping for air.

Supreme Court decisions are largely nonpolitical, issued without regard to public opinion or partisanship, and state their opinions in a reasoned, dignified manner. This detached, dispassionate approach is not only desirable but necessary to uphold the rule of law and to instill public confidence in the judicial system.

However, I regard Scalia’s dissent — articulated in an already highly polarizing case involving Arizona’s attempt to seize the initiative from Washington in preventing illegal immigration — as intemperate, at best, and politically ideological, at worst.

Even taking into account that Scalia is more flamboyant than his self-effacing colleagues and that individual dissenting opinions are often more caustic than majority opinions (which have to be softened in order to achieve consensus), this dissent is over the top.

Elliott L. Epstein, a local attorney, is founder of Museum L-A and an adjunct history instructor at Central Maine Community College. He is the author of “Lucifer’s Child,” a recently published book about the 1984 oven-death murder of Angela Palmer. He may be reached [email protected].

To understand why, some background is necessary.

The court’s majority opinion has struck down provisions of a statute that made it a state crime for anyone in Arizona to fail to comply with federal alien registration requirements or for an illegal alien to seek or engage in work in the state. (Neither is criminal under federal law). It has also invalidated a provision which authorized state law-enforcement officers to make a warrantless arrest of any person they had “probable cause to believe” was deportable. (Federal officers usually need a warrant).

The court’s decision is based not only on the fact that these aspects of Arizona’s law were inconsistent with federal law but also on the “field preemption doctrine.” Translation: Congress, under its constitutionally granted power to establish a “uniform rule of naturalization,” has legislated extensively enough to show its intent to regulate and enforce the entire field of immigration to the exclusion of the states.

Arizona had contended the federal government was failing to stop the flood of illegal immigration and that the state, which bore the brunt of that failure, was entitled to stick its finger in the dike.

In his dissent, Scalia inappropriately takes President Obama to the woodshed for selectively enforcing immigration laws based on the government’s need to allocate scarce enforcement resources, asking scathingly, “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive’s unwise targeting of that funding?”

As a former federal prosecutor, Scalia surely understands the critical importance to law enforcement of prosecutorial discretion and should appreciate that it’s not his or any other judge’s job to second-guess such discretionary executive-branch decisions. That’s part and parcel of the constitutional separation of powers.

Scalia even gratuitously criticizes a recent announcement by the Obama administration that it is temporarily exempting 1.4 million immigrants under the age of 30 from immigration enforcement. The announcement, made after the Arizona case was argued, was not a part of the record before the court, and, therefore, under basic appellate principles, should not have been considered by any of the justices.

The sarcastic tone of the dissent is troubling, too. Scalia writes that if the framers at the Constitutional Convention of 1787 had known the president would get the exclusive power to enforce immigration laws and the latitude to enforce them only to the extent he felt it appropriate, they “would have rushed to the exits.” It’s a great line for Comedy Central, not a high court opinion.

Furthermore, Scalia describes Arizona’s illegal immigration problem in the kind of hyperbolic, hysterical terms used by the state’s anti-immigration zealots, making it sound like the worst catastrophe since the Mongol invasion of the West by Genghis Khan: “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.”

Perhaps most disturbing is Scalia’s attempt to justify his views by resurrecting an inflated doctrine of “state sovereignty” (also known in the past as “states’ rights”), in which the authority of a state like Arizona is almost equivalent to that of a nation. This pernicious doctrine led to Southern secession and a bloody Civil War in 1861 and was later used to justify the South’s concerted, unlawful and at times violent opposition to desegregation in the 1950s and 1960s.

In Scalia’s opinion, each of the 50 states, because it is “sovereign,” retains the power to pass laws excluding illegal aliens from its borders, so long as those laws are not in direct conflict with existing federal immigration law. Dancing lightly around the importance of more recent, relevant immigration precedents, his dissent purports to find antecedents for this power in the distant past — in numerous laws passed by states during the first 100 years of U.S. history, which restricted “the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.” Ah, for a return to those good old days!

About the only antique precedent Scalia fails to cite is Chief Justice Roger Taney’s opinion in Dred Scott, the infamous Supreme Court case which set the country on a collision course for civil war. In 1857, Taney wrote that Dred Scott, a black slave brought by his owner into a federal territory where slavery was prohibited, could not sue for his freedom in court, because no black could ever have the rights of a citizen, including the right to sue. That was so, he said, because the authors of the Constitution viewed blacks as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Taney, in his zeal to protect the property rights of slave owners, overlooked the fact that many free states had already used their “sovereign” powers to grant their own blacks the very rights of citizenship Taney said were denied to all blacks by the Constitution’s authors.

Justices Thomas and Alito, conservative colleagues who usually side with Scalia, have filed separate partial dissents in the Arizona case but stake their positions on narrower legal grounds, notably the contention that the state’s statute complemented, rather than conflicted with, federal enforcement efforts and that Congress never intended to preempt all state immigration legislation. Their tone is more respectful as well. In short, their opinions don’t grate.

If Justice Scalia wants to do his current job and preserve respect for the Supreme Court as an institution, then he needs to exercise judicial restraint appropriate to a member of the nation’s highest court.

If he wants to be an “activist” and join the political fray, he should resign his lifetime appointment on the court and run for Congress. Better yet, he should get his own talk show on Fox News.

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