Nel's New Day

June 25, 2012

Immigration Not a ‘Victory’ for Brewer

The U.S. Supreme Court is probably holding onto its revelation of the health care ruling until the last minute (aka Thursday), but justices did reveal their decisions on immigration and Montana’s version of Citizens United today. Both these cases will set the direction of the United States for decades to come.

American Tradition Partnership Inc. v. Bullock, the Montana case, was lower profile than the Arizona case on immigration but equally important. Those who watch the millions of dollars rolling into the Republican candidate campaigns know that Citizens United gave corporations unrestricted political spending in the name of “free speech.” Before this SCOTUS 2010 ruling, Montana had passed a law, exactly one century ago, against corporations buying elections, but a 5-4 ruling from SCOTUS refuses to let this law stand.

The immigration ruling, Arizona v. United States, has been far more publicized and perhaps more misunderstood. Justice Elana Kagan recused herself from the decision, resulting in a 5-3 split for most of the decisions.  (Clarence Thomas should take a lesson from Kagan because of his conflict of interest in an extensive number of cases!)

Three provisions of Arizona’s immigration law were struck down; making it a state crime for an immigrant not to be carrying papers, criminalizing the failure of immigrants to register, and forbidding an illegal immigrant from working in Arizona. The fourth provision, the requirement that police check the immigration status of people they stop for traffic or other offenses, was allowed to stand because it seemed to coordinate with federal law and had not gone into effect. The justices left the door open for this provision to be challenged again after it does go into effect, allowing the possibility that it, too, will be declared unconstitutional.

Arizona Gov. Jan Brewer has been touting the decision as a victory. However, most law officials in Arizona, other than the infamous Sherriff Joe Arpaio of Maricopa County, disagree; they view the SCOTUS ruling as a way for them avoid racial profiling. The provision does require Arizona police to check the immigration status of people reasonably stopped in the course of keeping public order in the state, but it doesn’t permit police to hold people if they don’t have papers. The only responsibility that police have is to tell immigration authorities about undocumented immigrants.

According to the ruling, a state doesn’t have the right to make laws on a law reserved for the federal government. In the decision, Justice Anthony Kennedy wrote, “The state may not pursue policies that undermine federal law.” Supporting Kennedy’s decision were Chief Justice John Roberts and liberal Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Samuel Alito joined the majority of five in striking down the provision that immigrants not carrying papers are guilty of a misdemeanor.

From these two rulings came two revelations that are not connected to the decisions themselves. The first is the lack of professionalism from at least one of the justices. Antonin Scalia used his dissent to rant against President Obama’s executive directive to allow undocumented immigrants under the age of 30 to stay in the United States to apply for citizenship if they meet certain criteria including being brought into the country as a minor.

Scalia also declared that the Constitution’s Framers would have “rushed to the exits” if they’d known an executive branch would wield such power and that some of the states would not have joined the union if they knew what the president was going to do. In addition, he stated that keeping the Arizona immigration law was important to protect the state.

This and other comments show that his dissent came from an opinion regarding what “should” be done and not the constitutionality of the Arizona law. Like his arguments during the health care debate, Scalia is showing himself to have lost his ability to “judge”; instead he wants to make law. The conservatives should take notice that Scalia has gone far beyond the classic “activist judge.”

Scalia’s fury may also have come from the way that the ruling seemed to approve of the president’s directive to allow young undocumented workers to remain in the country. On page 17 of the opinion, the Court explicitly lists “a veteran” or a “college student” as two examples of undocumented immigrants who should not experience “unnecessary harassment.”

The other revelation from these two landmark rulings is the consistent rejection of state’s rights. Both decisions put federal rule over states’ rights, the opposite of traditional conservative views. Ironically enough, the four more liberal judges voted for states’ rights in the case of Montana’s case. Scalia, who had a temper tantrum about the sovereignty of state law in the Arizona case voted against Montana having the right to retain a century-old law to keep fraud out of elections.

The decision for a third case, Miller v. Alabama, announced today also ruled federal law over states’ rights when it forbid mandatory life sentences for juvenile offenders. The dissent in this case also shows the stress that at least one justice may be feeling. In his dissent to the decision, Alito mixed up the name of the prison administrator, Donald Roper, and the name of the 17-year-old juvenile offender, Christopher Simmons. Alito’s dissent read that Roper “committed a brutal thrill-killing just nine months shy of his 18th birthday.”

The health care case could also be seen as a states’ rights situation, with 26 states trying to keep the Affordable Care Act out of their terrain. There is no second-guessing this court. It may come down to Kennedy’s vote.

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