The Supreme Court split the baby on Arizona’s SB1070. It removed a lot of the meat of the State immigration law, leaving in place one of its most controversial provisions. But it highlights the bigger issue that demands a resolution.
The question of illegal aliens and how to deal with them has not be resolved. Estimates claim there are some 11 million illegal aliens in the United States – a figure that has reduced solely due to the economic fortunes of the nation. Given an upturn in the economic outlook, at some point in the future, it is completely reasonable to expect the number of illegal aliens to increase to prior estimates – if not surpass them.
Justice Scalia noted in his dissent from the majority opinion that
“Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.”
That defining characteristic is futher diminished by the actions of the Obama Administration in immediately stopping deportations and instead grant work permits to as many as 800,000 younger illegal immigrants on June 15th. Given that the work permits only provide a 2-year stay on the threat of immigration, and are restricted to a very limited segment of the illegal alien population, still it defines a policy that reduces the power of the nation to state who does and does not have a right to be in America.
These actions fly in the face of law currently in place, which was noted by Justice Thomas in his dissent from the majority
Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigration status” of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries.§1373(c).
Add to this the continued push to pass the DREAM Act – a path to citizenship that ignores the law as it stands currently and rewards the active choice of entering America illegally.
Which results in an end-around of law and enforcement. U.S. Homeland Security Secretary Janet Napolitano highlighted this new interpretation of law as directed by President Obama,
“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”
Thus we now have one of the top law enforcement agents of the nation interpreting what Congress meant when it passed immigration law, and arbitrarily creating new law in effect – on the basis of that interpretation of unwritten law. A situation that boldly disregards the fact that Secretary Napolitano is in law enforcement not creation.
Looking at the Supreme Court majority position, there seems to be a disconnect from what they ruled and how the Obama Administration is acting.
The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to“establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10.
Uniformity of law is not being enacted. It seems without question that President Obama is enacting law de facto, against the will of Congress – that failed to pass the DREAM Act in 2010 – and existing law as it stands.
The actions of President Obama and his Administration should not be taken as a surprise though. The current re-interpretation of standing law is little different than the desire (assuming a re-election) to circumvent previous Supreme Court decisions such as Citizens United. That plan to enact partisan dictates over the ruling of an equal part of the Government has been seen in the public rebuke of the Supreme Court during the State of the Union Address (2011) as well as in the statements of David Axelrod.
The ruling on SB1070 has placed squarely in the hands of Congress an issue that requires action from Congress. Rogue and partisan action from the Executive Branch only erodes the power of Congress and amplifies the confusion that has caused the inaction and contradiction of law that birthed SB1070 in the first place.
The majority decision by SCOTUS affirms that States cannot create immigration law that is seperate, in effect or scope or punishment, of federal law. It also clearly reminds Congress and the Executive that the law as it exists, must be enforced. The obligation to redefine immigration law rests not with “temporary stop-gap” actions or re-interpretations of enforcement agents, but with the will of the people as expressed by their representatives in Congress, and guided through the leadership of the Executive.