Jun 25 2012

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SCOTUS Affirms Federal Sovereignty in Immigration

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During oral arguments before the Supreme Court in Arizona v. US, the controversial state immigration case, it seemed that former Solicitor General and lead attorney for Arizona, Paul Clement, had again gotten the best of Solicitor General Donald Verrilli, around whom he ran circles during the Obamacare debate.

But oral arguments can sometimes be deceiving.

Today, SCOTUS ruled 5-3 that three of the four parts of the Arizona immigration law were “pre-empted” by federal law, and thus unconstitutional.

The fourth part, which requires officers conducting a stop, detention or arrest, to make efforts, in some circumstances, to verify the person’s immigration status with the federal government, was upheld – at least for now – as it was sent back to the 9th Circuit for additional review. SCOTUS chastised the 9th Circuit for moving to quickly to invalidate the provision, without proper evidence of its actual impact. The Court was equally clear that future, negative evidence could lead SCOTUS to overturning this provision as well.

From a constitutional point of view, the Court’s opinion is expressly consistent with provisions of the Constitution that assure federal supremacy in certain areas. Article VIII provides the federal government with responsibility for a unified rule of naturalization. Article VI Section II makes the Constitution the supreme law of the land. At the end of the day, SCOTUS was unpersuaded that state efforts to “piggy-back” on federal immigration legislation did not act as an infringement of federal sovereignty.

From a policy point of view, the SCOTUS decision is an enormous setback for anti-illegal immigration groups who have sought to use state laws as a vehicle to enforce existing immigration policy.  Upholding – temporarily – the provision on enforcement is but a fig leaf to cover what is a shattered strategy.

The action now shifts back to the federal government. If anything, the Arizona decision clears away distractions from an honest debate on our broken immigration system and a comprehensive solution to solve it. The timing of the SCOTUS decision all but insures that immigration will rise in importance in the presidential debate.

In making today’s announcement, the Court again reminds Americans that it does not seek to solve problems.  That authority is exclusive to the President and Congress. Rather, it is the role of the Court to ensure that legislative solutions and executive actions meet constitutional muster.

It is a crucial distinction that is often lost in the bitterly partisan debates.

To that end, it is noteworthy that Chief Justice John Roberts, a rock-solid conservative, and Associate Justice Anthony Kennedy, a right leaning jurist, sided with the Court’s three liberals in the 5-3 decision. With the professional left busy shredding the integrity and motives of conservative justices in advance of a potentially negative ruling on Obamacare this week, it is worth remembering the core function of SCOTUS within the checks and balances.

Today, conservatives, states rights activists and anti-illegal immigration groups will be angry and bitter.  But the constitutional grounding of today’s decision is persuasive, even as it does nothing to resolve rampant illegal immigration and the burdens placed on states as a result.

By Thursday, we will have a ruling on Obamacare.  The same principle will apply, even as the aggrieved parties are likely to change, with even greater consequences for the country.


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