Last week, Supreme Court Justice Antonin Scalia announced in a new book that he’d changed his mind about everything he ever believed about the Commerce Clause — just in time to ignore his own precedents and rule against the Affordable Care Act.
This week, as Sahil Kapur notes, Scalia used the court’s ruling on Arizona’s anti-immigrant law to condemn President Obama and complain about the administration’s enforcement policies. Consider this gem from Scalia’s dissent in the 5-3 decision.
It has become clear that federal enforcement priorities — in the sense of priorities based on the need to allocate “scarce enforcement resources” — is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. [For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”
The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct¬ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
Remember, Obama’s decision to implement many of the goals of the DREAM Act wasn’t at issue in this case. Scalia didn’t agree with the president’s move, though, so he made it part of the case anyway.
For that matter, Scalia complaining about lax enforcement of existing federal immigration laws — another element that really wasn’t at issue in this case — it itself bizarre, given that Obama deporting more undocumented immigrants than any modern president.
Adam Winkler, a constitutional law professor at UCLA, told Kapur, “Scalia has finally jumped the shark. He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution.” Adam Serwer joked, “If you put Scalia on Fox and Friends you’d have to squint to notice the difference.” That’s a great line, but it’s important to appreciate how accurate it is. As Glenn Greenwald added, Scalia is always the justice who complains the loudest about the “politicization” of the court, but Scalia is also “the most politicized justice” we’ve seen in a very long time. While we’re at it, this tweet from @nycsouthpaw was rather brilliant.
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